ALAN RICHARD KLEIN et al., Plaintiffs and Appellants, v. UNITED STATES OF AMERICA et al., Defendants and Respondents, 50 Cal. 4th 68

Opinion KENNARD, J. Plaintiff Alan Richard Klein was riding a bicycle for recreation on a two-lane paved road in Angeles National Forest in Southern California when he was struck head-on by an automobile driven by a part-time volunteer working for the United States Fish and Wildlife Service. Having been seriously injured in the collision, plaintiff sued the United States government (the owner of the national forest land) and its volunteer worker. At issue here is the scope and applicability of California’s Civil Code

section 846, which provides, as relevant here, that a landowner “owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose.” The Ninth Circuit Court of Appeals has asked this court to decide whether this provision applies to “acts of vehicular negligence committed by the landowner’s employee in the course and scope of his employment that cause personal injury to a recreational user of that land.” We conclude that Civil Code

section 846’s liability shield does not extend to acts of vehicular negligence by a landowner or by the landowner’s employee while acting within the course of the employment. We base this conclusion on

section 846’s plain language. The statutory phrase “keep the premises safe” is an apt description of the property-based duties underlying premises liability, a liability category that does not include vehicular negligence. Furthermore, a broad construction of that statutory phrase would render superfluous another provision of

section 846 shielding landowners from liability for failure to warn recreational users about hazardous conditions or activities on the land. I The facts are taken from the Ninth Circuit’s order in Klein v. U.S. (9th Cir. 2008) 537 F.3d 1027 requesting that this court decide a question of California law. On August 29, 2004, plaintiff Alan Richard Klein was riding his bicycle for recreation on Bear Divide Road in Angeles National Forest in California. Bear Divide Road is a two-lane paved road that is open to the public and that is owned and maintained by defendant United States government.

As plaintiff was cycling northbound, he was struck head-on by an automobile driven by defendant David Anderberg, a part-time volunteer for the United States Fish and Wildlife Service, who later told a California Highway Patrol officer that at the time of the collision he had been on his way to observe birds. The injuries plaintiff sustained in the collision were severe, including a partially severed ear, broken ribs, a collapsed lung, a brain injury affecting memory and speech, and a brachial plexis injury that permanently deprived him of the use of his left arm.

In addition to these physical injuries, the collision resulted in a substantial loss of income, and thus serious financial hardship, to plaintiff and his wife, coplaintiff Sheryll Klein. This occurred because plaintiff was forced to take a medical retirement from his federal government job as an air traffic controller, while his wife, so that she could provide care for plaintiff, took an early retirement from her job as an elementary school principal.

After exhausting their administrative remedies, plaintiffs brought suit against the United States and Anderberg in federal district court in the Central District of California.

The action against the United States was brought under the Federal Tort Claims Act (28 U.S.C. § 2671 et seq.), which provides for liability “where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” (28 U.S.C. § 1346(b)(1).) Against the United States, plaintiffs alleged two negligence theories: (1) the United States negligently maintained Bear Divide Road in an unsafe condition, and (2) the United States was vicariously liable for the vehicular negligence of its volunteer employee, David Anderberg.

Only the latter negligence theory is at issue here. In its answer to plaintiffs’ complaint, the United States defended on the ground that Civil Code

section 846 shielded it, as owner of the United States Forest Service land on which the accident had occurred, from any negligence liability to a person, such as plaintiff, who was injured while using that land for recreation. The United States also disputed plaintiffs’ allegation that, at the time of the accident, Anderberg was acting in the course and scope of his employment as a Forest Service volunteer. The United States filed a

summary judgment motion, which the district court granted. Regarding plaintiffs’ negligence theory that the United States was vicariously liable for Anderberg’s vehicular negligence, the district court assumed for purposes of ruling on the motion that at the time of the accident Anderberg was a United States employee acting within the course and scope of his employment. The district court concluded, nonetheless, that California’s Civil Code

section 846 immunized the United States, as a landowner, from liability for any injuries to plaintiffs resulting from negligent driving by Anderberg. Plaintiffs appealed to the Ninth Circuit Court of Appeals. Recognizing the important issue of California law presented by this case, the Ninth Circuit requested that we decide this question: Does

section 846 immunize a landowner from liability for acts of vehicular negligence committed by the landowner’s employee in the course and scope of his employment that cause personal injury to a recreational user of that land? II In its order requesting that this court decide a question of California law, the Ninth Circuit explained why it had concluded that the question had not been authoritatively resolved under existing precedents. The Ninth Circuit’s explanation provides a useful background for resolving the legal question at issue.

The Ninth Circuit observed, preliminarily, that although the landowner in this case happens to be the United States, under the Federal Tort Claims Act the federal government is liable only if a private person would be liable in the same circumstances under state law. Accordingly, the question to be decided is whether Civil Code

section 846’s immunity would protect a private landowner from liability for damages resulting from physical harm to a person who has entered the landowner’s property to engage in a recreational activity, when that harm was caused by the vehicular negligence of the landowner or the landowner’s employee. (Klein v. U.S., supra, 537 F.3d 1027, 1030.) Regarding that question, the Ninth Circuit concluded that there was “ ‘no clear controlling California precedent’ squarely” addressing the issue. (Klein v.

U.S., supra, 537 F.3d 1027, 1030.) The court recognized that an intermediate state appellate court—Division Six of the Second Appellate District Court of Appeal—had held, in Shipman v. Boething Treeland Farms, Inc. (2000) 77 Cal.App.4th 1424 [92 Cal.Rptr.2d 566], that Civil Code

section 846’s landowner immunity does extend to vehicular negligence. In Shipman, the plaintiff, a 16-year-old boy, was driving an all-terrain vehicle along a dirt road on the defendants’ private property when his vehicle collided with a station wagon driven by the defendants’ employee. The plaintiff sued the defendants, seeking damages for personal injury suffered in the collision, basing the action in part on the theory that the defendants were vicariously liable for negligent driving by their employee. The trial court granted

summary judgment for the defendants, and the plaintiff appealed. The Court of Appeal affirmed, concluding that Civil Code

section 846 shielded the defendants from negligence liability for an injury to an uninvited recreational user of their land, even an injury caused by vehicular negligence. (Shipman, supra, 77 Cal.App.4th at pp. 1428, 1432.) The Ninth Circuit recognized that Shipman is squarely on point, and it acknowledged that it generally accepts state intermediate appellate court decisions in the absence of relevant precedent from a state’s highest court. (Klein v.

U.S., supra, 537 F.3d 1027, 1031-1032.) But the Ninth Circuit said that in this particular instance it had found what it termed “convincing evidence” that this court likely would disagree with the Court of Appeal’s decision in Shipman. (Klein, at p. 1032.) The Ninth Circuit explained that it had found nothing in Civil Code

section 846’s language, or in the circumstances surrounding its enactment, to indicate that it was intended to provide immunity for negligent driving or, otherwise stated, that it was “anything more than a premises liability exemption statute.” (Klein v. U.S., supra, 537 F.3d 1027, 1032.) Its doubts about Shipman’s validity were also based, the Ninth Circuit explained, on certain statements in this court’s opinions in Ornelas v. Randolph (1993) 4 Cal.4th 1095 [17 Cal.Rptr.2d 594, 847 P.2d 560] (Ornelas) and Avila v.

Citrus Community College Dist. (2006) 38 Cal.4th 148 [41 Cal.Rptr.3d 299, 131 P.3d 383] (Avila). (Klein v. U.S., supra, 537 F.3d 1027, 1032-1034.) In Ornelas, this court held that Civil Code

section 846 immunized a property owner from liability for personal injuries that eight-year-old Jose Ornelas had sustained on the owner’s property. The injuries occurred when other children playing on top of old farm machinery that was stored on the defendant’s property dislodged a metal pipe that fell on the Ornelas child. (Ornelas, supra, 4 Cal.4th 1095, 1098.) This court rejected the argument, supported by earlier Court of Appeal decisions, that Civil Code

section 846 does not apply if the property on which the injury occurred was, at the time of the injury, unsuitable for recreational use. (Ornelas, supra, at p. 1108.) The Ninth Circuit found significance in this court’s explanation in Ornelas of the rationale for

section 846 immunity: “One who avails oneself of the opportunity to enjoy access to the land of another for one of the recreational activities within the statute may not be heard to complain that the property was inappropriate for the purpose.” (Ornelas, supra, at p. 1108.) This description, the Ninth Circuit stated, “invokes the concept of premises liability.” (Klein v. U.S., supra, 537 F.3d 1027, 1033.) Avila, the other decision of this court mentioned by the Ninth Circuit, did not directly involve Civil Code

section 846. Rather, it concerned the scope of California's Government Code

section 831.7, which immunizes public entities from liability for injuries sustained during a “hazardous recreational activity.” But in Avila this court recognized that

section 831.7’s legislative history revealed that it had been “designed to mirror Civil Code

section 846’s circumscription of property-based duties.” (Avila, supra, 38 Cal.4th 148, 157.) For that reason, this court in Avila gave some consideration to the scope of the immunity conferred by

section 846. The Ninth Circuit reasoned that what this court said in Avila about

section 846, although not binding as precedent, was relevant in determining how this court would likely decide the question of California law regarding the scope of

section 846. (Klein v. U.S., supra, 537 F.3d 1027, 1032-1033.) In Avila, the plaintiff was a college student who had been struck in the head by a pitched ball while at bat during an intercollegiate baseball game at a community college. (Avila, supra, 38 Cal.4th 148, 152.) The plaintiff sued the college, seeking damages for unspecified personal injuries caused by being hit by the baseball. (Id. at pp. 152-153.) He alleged that the pitcher had hit him intentionally and that the college was negligent in failing to supervise and control the pitcher. (Id. at p. 153.) In a demurrer to the plaintiff’s complaint, the defendant community college relied on Government Code

section 831.7. The trial court sustained the demurrer, but on the plaintiff’s appeal, the Court of Appeal reversed, concluding that

section 831.7 did not apply under these circumstances. (Avila, supra, at p. 153.) This court granted review. Finding Government Code

section 831.7’s relevant language somewhat ambiguous, this court reviewed the statute’s legislative history to determine the legislative intent underlying its enactment. This court stated its conclusion about that legislative intent in these words, which the Ninth Circuit considered particularly significant: “Thus, Government Code

section 831.7 was adopted as a premises liability measure, modeled on Civil Code

section 846, and designed to limit liability based on a public entity’s failure either to maintain public property or to warn of dangerous conditions on public property. Nothing in the history of the measure indicates the statute was intended to limit a public entity’s liability arising from other duties, such as any duty owed to supervise participation in particular activities.” (Avila, supra, 38 Cal.4th 148, 157-158.) Ultimately, however, this court found it unnecessary to decide “whether the immunity created by [Government Code]

section 831.7 extends only to premises liability claims.” (Avila, supra, 38 Cal.4th 148, 159.) Instead, this court reached the narrower conclusion that “school-sponsored and supervised sports activities are not ‘recreational’ in the sense intended by the statute, and thus

section 831.7 does not apply to immunize public educational entities from liability to students for injuries sustained during participation in such activities.” (ibid.) Finally, to explain its request that this court decide whether Civil Code

section 846’s immunity extends to vehicular negligence claims, the Ninth Circuit stressed the potential impact the resolution of that issue would have, in these words: “[I]t is of no small moment that the federal government owns millions of acres of National Park and National Forest land within the state of California.

Shielding the United States from liability for the negligent driving, and possibly for other negligent acts, of its employees on all of these lands may have substantial and negative consequences for the many residents of and visitors to California who make use of federal lands for recreational purposes.” (Klein v. U.S., supra, 537 F.3d 1027, 1033.) m In construing statutes, we aim “to ascertain the intent of the enacting legislative body so that we may adopt the construction that best effectuates the purpose of the law.” (Hassan v.

Mercy American River Hospital (2003) 31 Cal.4th 709, 715 [3 Cal.Rptr.3d 623, 74 P.3d 726]; accord, Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 986 [104 Cal.Rptr.3d 710, 224 P.3d 41]; Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1087 [29 Cal.Rptr.3d 234, 112 P.3d 623].) We look first to the words of the statute, “because the statutory language is generally the most reliable indicator of legislative intent.” (Hassan v. Mercy American River Hospital, supra, at p. 715; accord, Chavez v. City of Los Angeles, supra, at p. 986; People v.

Toney (2004) 32 Cal.4th 228, 232 [8 Cal.Rptr.3d 577, 82 P.3d 778].) When the statutory text is ambiguous, or it otherwise fails to resolve the question of its intended meaning, courts look to the statute’s legislative history and the historical circumstances behind its enactment. (Mejia v. Reed (2003) 31 Cal.4th 657, 663 [3 Cal.Rptr.3d 390, 74 P.3d 166].) Finally, the court may consider the likely effects of a proposed

interpretation because “ ‘[w]here uncertainty exists consideration should be given to the consequences that will flow from a particular

interpretation.’ ” (Ibid., quoting Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387 [241 Cal.Rptr. 67, 743 P.2d 1323].) We turn now to the text of Civil Code

section 846 to determine its plain meaning with regard to the statute’s purpose. A. Statutory Language Civil Code

section 846, in its first paragraph, defines the scope of the immunity granted to California landowners, in these words: “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 such premises to persons entering for such purpose, except as provided in this section.” In its second paragraph,

section 846 defines “recreational purpose” by reference to a list of activities that qualify as “recreational,” including among them all types of “vehicular riding.” In its third paragraph,

section 846 states that by allowing another to enter or use property for recreation the property’s owner does not “(

a) extend any assurance that the premises are safe for such purpose, or (

b) constitute the person to whom permission has been granted the legal status of an invitee or licensee to whom a duty of care is owed, or (

c) assume responsibility for or incur liability for any injury to person or property caused by any act of such person to whom permission has been granted except as provided in this section.” Finally, in its fourth paragraph,

section 846 provides three limitations on, or exceptions to, the landowner immunity it has granted, stating that the immunity does not apply to “willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity,” nor does it apply when permission to enter is granted for a consideration, nor when persons are expressly invited rather than merely permitted to enter the land. Preliminarily, we observe that although Civil Code

section 846 is commonly referred to as an immunity provision, and although for convenience we refer to it that way here, it does not confer an immunity in the strictest sense of that term, which is “a complete defense . . . [that] does not negate the tort.” (Black’s Law Dict. (1996 pocket ed.) p. 298; see Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 832, fn. 2 [123 Cal.Rptr.2d 40, 50 P.3d 751].)

Section 846 does not merely eliminate a damage remedy for certain types of negligent conduct by a landowner. The wording of

section 846’s first paragraph, providing that a landowner “owes no duty of care” to persons using the land for recreation, either to maintain safe premises or to warn of hazards, does indeed “negate the tort,” because the existence of a duty owed to the injured person is an essential element of the negligence tort. (See Paz v. State of California (2000) 22 Cal.4th 550, 559 [93 Cal.Rptr.2d 703, 994 P.2d 975].) By the plain meaning of the language in its first paragraph, Civil Code

section 846 absolves California landowners of two separate and distinct duties: the duty to “keep the premises safe” for recreational users, and the duty to warn such users of “hazardous conditions, uses of, structures, or activities” on the premises. (Civ. Code, § 846, 1st par.)

Section 846’s third paragraph adds an additional immunity, stating that by granting permission to enter for recreational use a property owner does not extend any assurance that the premises are safe for recreational use, confer on the recreational user the legal status of an invitee or licensee, or assume responsibility for any injury that a recreational user may cause to another person. This latter provision shields the landowner from liability for injuries caused by (rather than to) recreational users.

Here, we are concerned only with the scope of the first of these immunities, which absolves property owners of any duty to “keep the premises safe” for recreational use. The allegations of plaintiffs’ complaint do not implicate the other forms of immunity afforded by Civil Code

section 846. Plaintiffs have not sued under a failure-to-wam theory, they have not alleged that plaintiff Alan Klein relied on any assurance that the property was safe, they have not alleged that plaintiff Alan Klein was an invitee or licensee, and they have not alleged that another recreational user caused plaintiff Alan Klein’s injuries. These other forms of

section 846 immunity are relevant here only insofar as they assist us in construing the scope of the safe-premises immunity. For three reasons, we conclude that the plain language of Civil Code

section 846’s first paragraph, absolving landowners of the safe-premises duty, supports the conclusion that

section 846 does not relieve landowners of the duty to avoid vehicular negligence. First, the phrase “keep the premises safe” is an apt description of the property-based duties underlying premises liability, a liability category that does not include vehicular negligence. Second, differences in the statutory descriptions of the safe-premises immunity and the hazard-warning immunity suggest that the former is considerably narrower in scope and does not apply to activities like motor vehicle driving.

Third, the expansive construction of the safe-premises clause urged by the United States would render the hazard-warning clause superfluous. We elaborate on these reasons. As we have noted, Civil Code

section 846, in its first paragraph, absolves landowners of the duty “to keep the premises safe.” The United States urges us to construe this provision as absolving landowners from any duty of care to refrain from negligence in the conduct of activities, such as driving motor vehicles, on their land. In other words, the United States would have us construe the duty “to keep the premises safe” as being coextensive with the duty to use due care to avoid injury to recreational users of their land, subject only to the three immunity exceptions-—willful or malicious conduct, entry granted for a consideration, and express invitation—that are set forth in

section 846’s fourth paragraph. We disagree. First, it is unlikely that California’s Legislature intended Civil Code

section 846’s premises-based language to be interpreted so broadly as to include any and all factors that might create a personal injury risk on one’s property. Had the Legislature intended such a broad immunity, it would have been a simple matter to provide in

section 846 that landowners owe no duty of care to avoid personal injury to persons using their land for recreation. By providing instead that a landowner owes no duty to “keep the premises safe,” the Legislature has selected language implying a narrower immunity, focused on premises liability claims arising from property-based duties. As one Court of Appeal has explained, “[b]roadly speaking, premises liability alleges a defendant property owner allowed a dangerous condition on its property or failed to take reasonable steps to secure its property against criminal acts by third parties.” (Delgado v.

American Multi-Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406, fn. 1 [85 Cal.Rptr.2d 838]; see also Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156 [60 Cal.Rptr.2d 448, 929 P.2d 1239] [premises liability is based on the duty “to maintain land in one’s possession in a reasonably safe condition”].) The duty to drive a motor vehicle safely, by contrast, does not arise from ownership or possession of land. The second reason is based on a comparison of the statutory language describing the safe-premises and hazard-warning immunities.

It is a general rule of statutory construction that “[w]hen one part of a statute contains a term or provision, the omission of that term or provision from another part of the statute indicates the Legislature intended to convey a different meaning.” (Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 73 [109 Cal.Rptr.2d 1, 26 P.3d 332]; accord, Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111, 1118 [29 Cal.Rptr.3d 262, 112 P.3d 647]; People v. Gardeley (1996) 14 Cal.4th 605, 621-622 [59 Cal.Rptr.2d 356, 927 P.2d 713].) In Civil Code

section 846’s first paragraph, the statutory description of the hazard-warning immunity expressly refers to hazardous “uses of’ and “activities on” as well as “conditions” of the owner’s land. By contrast, the statutory description of the safe-premises immunity makes no reference to uses or activities. It does not, for example, absolve a landowner of a duty to “keep activities on the premises safe,” but only from the duty to keep “the premises” themselves safe.

Had the Legislature intended to extend the liability shield to negligently conducted activities, such as dangerous driving, it could simply have provided, in the first paragraph, that a landowner owes no duty of care to avoid, prevent, remedy, or give any warning of hazardous conditions, uses, structures, or activities, on the land. The Legislature did not do so. Instead, it selected language carrying a strong implication that the safe-premises immunity is narrower than the hazard-warning immunity, and does not extend to unsafe activities such as negligent driving of a vehicle.

The third reason relies on another statutory construction principle, that courts must strive to give meaning to every word in a statute and to avoid constructions that render words, phrases, or clauses superfluous. (People v. Trevino (2001) 26 Cal.4th 237, 245-246 [109 Cal.Rptr.2d 567, 27 P.3d 283]; People v. Woodhead (1987) 43 Cal.3d 1002, 1010 [239 Cal.Rptr. 656, 741 P.2d 154].) The broad construction of the safe-premises immunity provision that the United States urges us to adopt would violate this rule.

The duty to “keep the premises safe,” as the United States views it, encompasses not only the duty to prevent or remedy hazardous conditions on the property, and possibly also to guard against criminal activity by third parties, but also the duty to use due care in the conduct of any activity on the property. In other words, the United States would have us construe the language in Civil Code

section 846’s first paragraph absolving landowners of the duty “to keep the premises safe” as absolving landowners of any duty of care to avoid personal injury to recreational users of their land. But such a broad reading of the safe-premises immunity would encompass tort claims based on a failure to warn of potentially dangerous activities because, as to such activities, a landowner can “keep the premises safe” either by conducting the activities in a safe manner or by warning others of the risks posed by those activities.

Therefore, it is not reasonable to construe the phrase “keep the premises safe” as encompassing one of those alternative safety approaches but not the other. Unless the phrase “keep the premises safe” is construed narrowly to mean preventing or remedying dangerous physical conditions on the property, the alternative expansive construction renders superfluous the separate liability shield for failures to warn of hazardous activities. To give independent meaning and purpose to Civil Code

section 846’s hazard-warning clause, we construe Civil Code

section 846’s safe-premises clause more narrowly to encompass only premises liability claims arising from alleged breaches of property-based duties. For these three reasons that are based on the plain language of Civil Code

section 846’s first paragraph, we conclude that

section 846 does not bar a recreational user’s vehicular negligence claim against a landowner. Although

section 846 is broad in many respects, it is not all-encompassing, and it does not release landowners or their employees from their basic duty to use due care while engaged in potentially hazardous activities such as driving a motor vehicle. Our conclusion is not altered by consideration of the language of Civil Code

section 846’s fourth paragraph stating that the

section “does not limit the liability which otherwise exists ... for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity.” This provision establishes a limitation on, or exception to, the various

section 846 immunities. The reference to a “willful or malicious failure to . . . warn against a dangerous condition, use, structure or activity” (italics added) limits the hazard-warning immunity provided by

section 846’s first paragraph. The reference to a “willful or malicious failure to guard . . . against a dangerous condition, use, structure or activity” limits both the safe-premises immunity granted by the first paragraph (as to dangerous conditions and structures) and the third paragraph’s immunity from liability for injuries caused by recreational users (as to dangerous uses and activities). The words “guard . . . against a dangerous . . . activity” aptly describe a duty relating to the dangerous activity of a third party, such as a recreational user, and would be an odd choice of words to describe a duty relating to the landowner’s own activities. Thus,

section 846’s fourth paragraph does not establish a limitation or exception for the landowner’s own willful or malicious conduct. We may infer that the Legislature perceived no need for such a limitation inasmuch as it had not provided a corresponding immunity for activities, such as vehicle driving, conducted by the landowner or the landowner’s employee. B. Legislative History Having concluded, based on the plain meaning of its language, that Civil Code

section 846 does not bar vehicular negligence claims against landowners, it is not necessary to consider the statute’s legislative history. Our review of that legislative history reveals, however, that it is consistent with our conclusion. As this court observed in Ornelas, the legislative history for Civil Code

section 846 is sparse and, at least on some points, inconclusive. (Ornelas, supra, 4 Cal.4th 1095, 1105-1106, fh. 8.) “A letter from the bill’s Senate sponsor to the Governor urging favorable consideration suggests that it would encourage owners who might otherwise fear liability to grant access to their property.” (Id. at p. 1106, fn. 8.) As this court has noted, however, in crafting legislation that would prevent the closure of private lands to recreational users because of landowners’ liability concerns, the California Legislature sought, to strike a fair balance between the interests of private landowners and those of recreational users. (Id. at p. 1108.) Our conclusion here, that

section 846 encompasses premises liability claims but not vehicular negligence claims, furthers this legislative objective of balancing the respective interests of landowners and persons using their lands for recreation. Construing

section 846 to confer an immunity from liability for injuries caused by the negligent conduct of the landowner or the landowner’s employees might well discourage recreational use of the land, thereby defeating the underlying statutory purpose. Moreover, the Legislature might well have concluded that it is fair to hold both landowners and recreational users to essentially the same standard of care.

Thus, if the landowner and a recreational user are engaged in the same activity on the land at the same time—whether hunting, bicycle riding, or driving a vehicle—each should owe the same duty of care to the other and each should be subject to the same liability if a breach of that duty results in personal injury to the other. At the same time, the landowner is relieved of liability for recreational user injuries when the theory of liability depends on a duty that the law otherwise imposes specifically and uniquely on landowners. The

summary prepared by the Legislative Counsel for the original 1963 bill states that the bill “provides that an owner of an estate in real property is not liable for injuries to people who enter upon his land for various recreational purposes” (Legis. Counsel, Rep. on Sen. Bill No. 639 (1963 Reg. Sess.) July 5, 1963) and this wording is repeated in some other legislative history documents relating to that bill. These statements might be read as suggesting that Civil Code

section 846 confers a blanket immunity. But if the Legislature had actually intended such a broad and unqualified immunity, it could have used the Legislative Counsel’s broad and unqualified wording. That it chose rather different wording suggests that it intended a narrower and more focused immunity, and the language of the statute itself is the most reliable guide to legislative intent. We note also that legislative history materials from the 1980 amendment that extended Civil Code

section 846’s protections to owners holding nonpossessory interests in land consistently summarize the

section as providing “that an owner of any estate in real property owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 1966 (1979-1980 Reg. Sess.) as amended Feb. 11, 1980, p. 1, italics added.) Likewise, the debate surrounding the 1980 amendment to

section 846 focused on whether nonpossessory landowners should be given an incentive to “protect the public from dangerous conditions on the land.” (See, e.g., Assem. Com. on Judiciary, Analysis of Assem. Bill No. 1966 (1979-1980 Reg. Sess.) as amended Feb. 11, 1980, p. 3, italics added.) These statements support our construction of

section 846 as barring only premises liability claims arising from property-related duties. C. Public Policy Considerations Although our construction of Civil Code

section 846 is not based on public policy considerations, we review those considerations briefly to ensure that the construction we adopt will not produce manifestly adverse effects that the Legislature could not have intended when it enacted that law. The state has a strong interest in promoting the safe driving of motor vehicles and in preventing or minimizing personal injuries resulting from motor vehicle accidents.

Our construction furthers these interests by encouraging property owners and their employees to drive safely on their lands so as to reduce collisions with, and injuries to, persons engaged in recreational activities on those lands. Regarding activities other than motor vehicle driving, our construction, as previously mentioned, has the effect of holding landowners and those who enter their property for recreational purposes to essentially the same standard of care.

The landowner’s status as landowner does not result in the imposition of additional duties or a higher standard of care, but neither does it relieve the landowner from the general duty imposed on all, landowner and recreational user of land alike, to exercise due care while performing activities that could result in injuries to others.

Attempting to demonstrate the “artificiality of the distinction” (dis. opn., post, at p. 91) that we draw here between negligence consisting of a failure to remedy a dangerous physical condition and negligence in the performance of an activity, the dissent relies heavily on a series of hypothetical scenarios. In constructing these examples, the dissent avoids mention of any factual detail that would establish the landowner’s actual negligence, thereby creating a false impression that if Civil Code

section 846’s liability shield is not extended to cover these situations, landowners may be held liable for conduct that is entirely blameless. Moreover, the dissent nowhere acknowledges the arbitrary distinctions that would determine liability under the construction of

section 846 that it proposes. An example illustrates the latter point. A landowner is visited by his brother, who lives in another state, and the two travel in the same car to a tavern where they spend the afternoon talking and consuming alcoholic beverages. On their return to the landowner’s property, the car goes out of control, as a result of excessive speed and the driver’s inebriation, while making the turn from the public highway onto the landowner’s property. The car strikes a recreational hiker, who is seriously injured. Under the dissent’s proposed

interpretation of Civil Code

section 846, if the negligent driver is the landowner, he is liable for the hiker’s injuries if the hiker happens to be standing beside the public road, off of the landowner’s property, but

section 846 shields the owner from liability if the hiker is standing just a few feet away on the landowner’s property. And if the negligent driver happens to be the landowner’s brother, rather than the landowner, the brother is liable for the hiker’s injuries regardless of where the hiker happens to be standing when struck, because Civil Code

section 846’s liability shield applies only to persons having an interest in the land. Under the construction we adopt here, of course, the identity of the driver and the hiker’s exact location at the time of injury are not relevant in making the liability determination. IV Having concluded that Civil Code

section 846’s safe-premises immunity clause does not encompass vehicular negligence claims, we consider and reject the arguments that defendant United States offers against this statutory construction. To support its position that Civil Code

section 846 precludes recovery against a landowner for an injury caused by vehicular negligence, defendant United States seizes on language in this court’s decision in Ornelas characterizing

section 846 as “extremely broad” (Ornelas, supra, 4 Cal.4th 1095, 1105). But Ornelas dealt with an injury caused by farm equipment being stored on the premises, a hazardous condition of the property. Nowhere in this court’s discussion of the scope of

section 846 did this court consider unsafe activities undertaken by landowners or their employees. More specifically, at no point did this court in Ornelas, or in any other case before this one, address whether

section 846 immunity would extend to cover affirmative acts of negligence on the part of landowners or their employees. Viewed in context, the “extremely broad” language in Ornelas refers to the type of interest held by the landowner (possessory or nonpossessory), the nature of the property (developed or undeveloped, urban or rural, natural or altered), and the sorts of activities considered “recreational” (including even the spontaneous, unsupervised play of young children). (Ornelas, supra, 4 Cal.4th 1095, 1100-1102, 1105-1108.) Civil Code

section 846 is indeed broad in each of those respects.

Ornelas made this point to explain why the statute applies to protect landowners from liability even if the land at issue is not well suited to recreational pursuits. (Ornelas, supra, at p. 1105.) This court stated that, “assuming the requisite ‘interest’ in land, the plain language of the statute admits of no exceptions, either for property ‘unsuitable’ for recreational use or otherwise.” (Id. at p. 1105.) Defendant United States relies also on this language in Ornelas: “The landowner’s duty to the nonpaying, uninvited recreational user is, in essence, that owed a trespasser under the common law as it existed prior to Rowland v.

Christian [(1968)] 69 Cal.2d 108 [70 Cal.Rptr. 97, 443 P.2d 561]; i.e., absent willful or malicious misconduct the landowner is immune from liability for ordinary negligence.” (Ornelas, supra, 4 Cal.4th 1095, 1100.) Because this language was unnecessary to the decision in Ornelas, it was dictum, and thus lacking in precedential force (City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 390 [75 Cal.Rptr.3d 333, 181 P.3d 142]), particularly in light of the facts of Ornelas, which involved a premises liability claim based on the allegedly hazardous condition of the property (see Brown v.

Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 734—735 [257 Cal.Rptr. 708, 771 P.2d 406] [stating that a decision’s positive authority is limited by the facts presented by the case]). Indeed, until now every Civil Code

section 846 case this court has decided has involved an injury arising out of the condition of privately owned property, rather than an injury arising out of an allegedly unsafe activity being conducted on the property. (See Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151 [90 Cal.Rptr.3d 732, 202 P.3d 1115] [child injured while attempting to dislodge a kite from a power line on defendant’s property]; Lewis v. Superior Court (1999) 19 Cal.4th 1232 [82 Cal.Rptr.2d 85, 970 P.2d 872] [plaintiff injured when horse he was riding stepped into a rut on defendant’s private road]; Hubbard v.

Brown (1990) 50 Cal.3d 189 [266 Cal.Rptr. 491, 785 P.2d 1183] [plaintiff injured when he ran his motorcycle into a fence on defendant’s property]; Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699 [190 Cal.Rptr. 494, 660 P.2d 1168] [two teenage girls drowned in canal owned by defendant].) Furthermore, it appears that the quoted Ornelas language on which defendant United States relies is an inaccurate or at least incomplete description of a landowner’s duty to a trespasser under the common law as it existed in California before Rowland v. Christian, supra, 69 Cal.2d 108.

As described by this court in Rowland, the general rule under the common law was that trespassers are “obliged to take the premises as they find them insofar as any alleged defective condition thereon may exist,” and that “the possessor of the land owe[d] them only the duty of refraining from wanton or willful injury.” (Rowland, supra, 69 Cal.2d at p. 114, italics added.) Twelve years earlier, this court had given this somewhat more nuanced description of existing California law: “[I]n cases involving injury resulting from active conduct, as distinguished from condition of the premises, the landowner or possessor may be liable for failure to exercise ordinary care toward a licensee whose presence on the land is known or should reasonably be known to the owner or possessor.” (Oettinger v.

Stewart (1944) 24 Cal.2d 133, 138 [148 P.2d 19].) Although Oettinger involved a licensee or “business visitor” rather than a trespasser, the court implied that, at least under some circumstances, a landowner, while engaged in “active conduct,” was obliged to exercise reasonable care toward a trespasser if the landowner knew that the trespasser was present, or had reason to anticipate that the trespasser would be present, in the area where the injury occurred. (Oettinger v.

Stewart, supra, 24 Cal.2d at pp. 138-139.) Among the cases this court cited as having recognized the above described landowner duty was Hamakawa v. Crescent Wharf etc. Co. (1935) 4 Cal.2d 499 [50 P.2d 803], a case involving a trespasser.

There, this court had held that the defendant, who was in control of the premises that the plaintiff had entered without permission, owed a duty “to conduct its activities with reasonable care for [the plaintiff’s] safety” if, but only if, the defendant “knew or from facts within its knowledge should have known of the plaintiff’s presence.” (Hamakawa, supra, at pp. 501-502.) This description of the duty that a landowner owes to a trespasser at common law is consistent with

section 336 of the Restatement Second of Torts, which states: “A possessor of land who knows or has reason to know of the presence of another who is trespassing on the land is subject to liability for physical harm thereafter caused to the trespasser by the possessor’s failure to carry on his activities upon the land with reasonable care for the trespasser’s safety.” Of course, Civil Code

section 846 makes a plaintiff’s common law status, whether invitee or trespasser, irrelevant to the question of the defendant landowner’s liability. What we decide today is whether

section 846 shields a landowner from liability for a recreational user’s injury caused by the negligent driving of the landowner’s employee. The dictum in this court’s Ornelas decision regarding a landowner’s duty to a trespasser under earlier common law (Ornelas, supra, 4 Cal.4th 1095, 1100) offers little instruction on that issue. This court had no need in Ornelas to consider negligence unrelated to the upkeep of the premises, as Ornelas involved the sort of injury typically arising under

section 846—an injury resulting from the condition of the land. V In response to the Ninth Circuit’s request for clarification of California law, we conclude that Civil Code

section 846 does not shield a landowner from liability to a recreational user for personal injury resulting from the negligent driving of the landowner’s employee acting within the course and scope of employment. George, C. J., Werdegar, J., and Moreno, J., concurred. Rule 8.548(

a) of the California Rules of Court provides: “On request of the United States Supreme Court, a United States Court of Appeals, or the court of last resort of any state, territory, or commonwealth, the [California] Supreme Court may decide a question of California law if: ['][]

(1) The decision could determine the outcome of a matter pending in the requesting court; and Q]

(2) There is no controlling precedent.” Although both Alan Klein and his wife Sheryll Klein are plaintiffs in this lawsuit, for convenience we use “plaintiff’ in the singular to refer to Alan Klein. The brachial plexus is a network of nerves running from the neck to each arm and controlling the movement of certain chest and arm muscles. (See Mosby’s Medical Diet. (5th ed. 1998) p. 218.) As we use it here, the term “vehicular negligence” means negligence in driving a motor vehicle, as opposed to other forms of negligence involving a vehicle, such as leaving the vehicle parked in an unsafe location or in an unsafe condition. Government Code

section 831.7, subdivision (a), provides: “Neither a public entity nor a public employee is liable to any person who participates in a hazardous recreational activity, including any person who assists the participant, or to any spectator who knew or reasonably should have known that the hazardous recreational activity created a substantial risk of injury to himself or herself and was voluntarily in the place of risk, or having the ability to do so failed to leave, for any damage or injury to property or persons arising out of that hazardous recreational activity.” Insofar as it is inconsistent with this conclusion, the state Court of Appeal’s decision in Shipman v.

Boething Treeland Farms, Inc., supra, 77 Cal.App.4th 1424, is disapproved.