Horvitz & Levy LLP obtained a successful result for a family farming enterprise in a negligence action brought by an injured trespasser.
Jason Monroe trespassed on to a farm operated and managed by Jeff Yurosek, by and through three related LLCs (the Yurosek entities). Monroe rode a borrowed ATV on a dirt farm road and sustained severe injuries when he collided with a cable gate (a thick metal cable strung between two metal posts) that had been placed across the road by the Yurosek entities to deter trespassers, hunters and thieves from entering the farm. Monroe sued the Yurosek entities, alleging that the placement of the cable gate and the absence of eye-catching markings on the gate constituted negligence. Citing Civil Code section 846, the Yurosek entities asserted recreational use immunity, which insulates landowners from liability for injury to non-permissive recreational users of the land resulting from the landowner’s negligence. (The immunity does not apply, however, where injury results from a landowner’s willful or malicious acts.)
A jury found that the Yurosek entities were negligent, but also found that Monroe was on the farm without permission and for a recreational purpose, and that the Yurosek entities had not acted willfully or maliciously. Accordingly, the Yurosek entities were immune from liability under the recreational use immunity statute and the court entered judgment in their favor.
Monroe appealed and the Yurosek entities retained Horvitz & Levy to defend against Monroe’s appeal. The Court of Appeal (Fifth District) affirmed the judgment, holding mainly that the Yurosek entities could assert the recreational use immunity, even though none of them owned the farmland in question. The court observed that Civil Code section 846 protects “[a]n owner of any estate or any other interest in real property, whether possessory or nonpossessory,” and that although the Yurosek entities did not own or formally lease the land at the site of the accident, they had been farming that land for many years and for their own financial benefit, with the permission of the landowner. The court held, as a matter of law, that the Yurosek entities possessed a license to use the land and therefore properly asserted recreational use immunity.