My friend’s mother tripped over a curb in Disneyland’s California Adventure. She suffered injuries on her forehead and wrist. It happened at night and the curb was painted the same color as the walkway, making it hard to see especially at night. Do we have a case?
A personal injury case may be borne out of the incident causing the injury provided that the same falls under the exception to the general rule of the so-called “recreational use immunity”. Generally, landowners and others with a possessory or non-possessory interest in real property owe no duty to keep the premises safe for entry or use by others for a “recreational purpose”; nor is there a duty to warn “recreational users” of hazardous conditions or activities on the premises. [CC § 846] [2:3400].
It is intended to encourage private landowners to permit free public use of their property for recreational purposes, by relieving them of broad tort liability exposure. [Ornelas v. Randolph (1993) 4 C4th 1095, 1103, 17 CR2d 594, 599; see Delta Farms Reclamation Dist. v. Super.Ct.(Fernandez) (1983) 33 C3d 699, 707–708, 190 CR 494, 499] [2:3401]. This recreational use immunity extends only to premises liability claims arising from the landowner’s alleged breach of property-based duties; i.e., the statute relieves landowners of a duty of care to recreational users to prevent or remedy dangerous physical conditions on their property. [Klein v. United States (2010) 50 C4th 68, 81, 112 CR3d 722, 731–732] [2:3402]. The immunity applies whether or not the injured party was engaged in recreation at the time the injury occurred … so long as he or she entered upon the premises for a “recreational purpose.” [See Ornelas v. Randolph, supra, 4 C4th at 1101–1102, 17 CR2d at 598; ackson v. Pacific Gas & Elec. Co., supra, 94 CA4th at 1115, 114 CR2d at 834–835] [2:3406].
However, there are exceptions to this general rule, wherein recreational users may be held potentially liable. First, a willful or malicious failure to guard or warn against a dangerous condition or activity on the property wherein plaintiff must show that: Defendant had actual or constructive knowledge of the peril; Defendant had actual or constructive knowledge that injury was probable; and Defendant consciously failed to act to avoid the peril [2:3418]. Second, for paid admission, wherein a permission to enter for a recreational purpose was granted for a consideration—i.e., paid admission to the premises—other than consideration paid by the State [CC § 846; see Miller v. Weitzen (2005) 133 CA4th 732, 739–740, 35 CR3d 73, 78–79] [2:3420]. I suggest that you seek personal assistance from a lawyer to assist you in filing your personal injury claim.