The Natural Condition Immunity – What You Need to Know Before You Pitch Your Tent in the Great Outdoors this Spring Season

By: Jennie Barkinskaya, Esq.

As we approach the spring season, warmer temperatures are bound to entice outdoor enthusiasts to venture out to the wide open spaces to camp, hike and backpack. As we all know, there is no shortage of visually stunning and otherwise inviting wilderness areas throughout the state of California to visit – from Big Sur, to Death Valley, to the Trinity Alps Wilderness. However, before you get excited about those hot dogs and s’mores, you should be aware of Government Code § 831.2, commonly referred to as the “natural condition immunity,” which could render public entities immune against claims of premises liability and dangerous condition liability. Government Code § 831.2 provides that “neither a public entity nor a public employee is liable for an injury caused by a natural condition of any unimproved public property, including but not limited to any natural condition of any lake, stream, bay, river or beach.” The purpose of the natural condition immunity is to encourage public use of unimproved government property by relieving government agencies from being “‘put to the expense of making the property safe, responding to tort actions, and paying damages.’” Sounds like a good idea, right? Keep reading to learn how you can be denied damages by a public entity if you camp in an area that is classified as “unimproved.”

The natural condition immunity was discussed in the recently published case of County of San Mateo v. Superior Court of San Mateo County (2017) 13 Cal.App.5th 724. As shown by County of San Mateo, the issue is not straightforward and there are many factors to be considered such that summary judgment is generally not appropriate. Indeed, the lead drafter of the Government Claims Act, Professor Van Alstyne, contemplated that “the distinction between the ‘developed’ land and the ‘undeveloped’ sectors of a park might well be difficult to identify in terms of boundary lines on a map, and might have to be treated as a question fact…”

In County of San Mateo, plaintiff child brought a lawsuit against the County of San Mateo alleging premises liability and dangerous condition of public property after he suffered injuries as a result of a 72-foot tall diseased tree falling on his tent while camping within a County-owned wilderness area. The County moved for summary judgment on the grounds that it was immune from liability under the natural condition immunity. 

The trial court denied the County’s motion, concluding that there were triable issues of fact as to whether the subject property was “unimproved” within the meaning of the statute. First, the trial court pointed out that the campsite where plaintiff’s injuries occurred had been “improved” by a clearing, picnic tables, a fire pit, a barbecue pit, and bumper logs and that in the tree’s immediate vicinity, there were two other developed campsites and a paved roadway. 

Next, the trial court distinguished the matter from an earlier similar case, Alana M. v. State of California (2016) 245 Cal.App.4th 1482. In Alana M., a public entity was found to be immune from liability in a suit brought against it by plaintiff who had similarly been injured by a falling tree. The Court there explained that the public entity was immune since the tree (and not the plaintiff) was located on unimproved property. The Alana M. Court determined that in interpreting Government Code § 831.2, the relevant inquiry should be the character of the property where the natural condition (in Alana M., the tree) is located, and not the location of where the injury occurred. In County of San Mateo however, plaintiff presented expert opinion that the tree at issue had roots which grew underneath the campsite where plaintiff suffered his injuries. As such, the trail court determined that there were triable issues of fact and therefore, summary judgment would not be appropriate.

Last, the trial court considered expert opinion presented by plaintiff that man-made physical alterations contributed to the diseased condition of the tree which ultimately caused it to break and fall onto plaintiff, causing him injuries. The trial court determined that this evidence presented by plaintiff also created a triable issue of fact of whether such man-made contributions caused the subject property to be considered “improved” such that the County would not be entitled to summary judgment.

Clearly, there are many nuances to the natural condition immunity. So before you load up your packs and begin your ascent up a mountaintop this spring season, consider the character of your campsite and whether the land could be described as “improved.” Otherwise, you may be out of luck if you try to seek monetary compensation for injuries you suffer while you are on your trip in the great outdoors. 

Jennie Barkinskaya earned her undergraduate degree from the University of California, Los Angeles (UCLA) where she majored in history. She received her Juris Doctorate degree from the University of California, Davis SOL, King Hall. While in law school, Ms. Barkinskaya was a certified legal intern at the Sacramento County Public Defender’s Office. After law school, she served as a Deputy City Attorney. She later transitioned to private practice where she handled legal malpractice and a variety of other matters ranging from groundwater nitrate contamination to palimony and defamation. At Bradley & Gmelich LLP, Ms. Barkinskaya focuses her practice on general and civil litigation, as well as public entity work. 

Ms. Barkinskaya has been admitted to practice law in all California state courts as well as the Northern District of California. 

Congratulations

Congratulations to Partner Lindy F. Bradley for obtaining a successful settlement for our client, a large grocery store chain. In this case, plaintiff alleged that she slipped and fell on a wet substance that was on our client's floor. She claimed that she suffered a knee and back injury and was in need of knee surgery as a result of the incident. Through Ms. Bradley’s extensive investigation, it was determined that plaintiff had five previous workers compensation claims for similar injuries and Ms. Bradley was able to settle the case for a trivial amount.

Managing Partner, Barry A. Bradley conducted a webinar on March 21, 2018 for a large insurance company where he discussed how to handle and defend third party criminal assault cases.

Business Tip of the Month

How Much Tax Will I Pay When I Sell My Business?

By: Harold A. Laufer, Esq.

 

 

When you put your company on the market to sell, it may seem obvious, but it’s important to realize that it’s not how much you receive on the sale, but how much you get to keep after you pay your taxes. The corporate or LLC form of your company and how you structure the sale can make a huge difference to your bottom line.

First, there’s a big difference tax-wise whether you’re a “C” corporation or a LLC or “S” corporation. A “C” corporation will pay tax on the proceeds of an asset sale. After the corporate taxes are paid, you, as the owner, pay a second tax when the remaining proceeds are distributed out to you. You can avoid this double tax in a LLC or “S” corporation because these are pass though entities which do not pay tax on their profit. The profit is taxed only once on your personal tax return.

The structure of the sale is important also. As just noted, if you sell your company’s assets, and you’re a “C” corporation, there is the double tax issue. If you sell your ownership in the company – your stock or LLC membership interest - then the buyer is dealing with you directly and there is no entity level tax. You only pay your personal taxes.

Thinking about how to structure your sale in advance can make a huge difference in what you finally receive when selling the biggest asset you own – the company you’ve worked so hard to build. We can help guide you through these issues.

Harold Laufer is a highly experienced corporate transactional lawyer. He spent much of his career practicing corporate law as an equity partner at a major Midwest law firm, where he headed the Mergers and Acquisitions Practice Group. He has represented companies of all sizes, from start-ups to Fortune 500 companies, along with their owners and managers, as a Trusted Advisor. Mr. Laufer has handled a wide variety of transactions for corporate clients, with experience in all aspects of a business’ life cycle, starting with deal structuring and entity formation, and continuing through Founder’s documentation, initial HR, IP, rights and licensing issues, financing, growth, corporate governance and eventually ending in liquidity events and exits.

Harold has published and lectured on mergers and acquisitions, negotiation strategies and skills, and corporate governance. He has taught graduate level business courses on family offices, contract drafting and enforcement, and entrepreneurship. He is affiliated with UCLA’s Anderson’s MBA and entrepreneurial programs. 

Proud Supporter

Bradley & Gmelich LLP is a proud supporter of the Glendale YWCA where its mission is to empower women, girls and families in its community through education and intervention to achieve independence, well-being, health, self-sufficiency and life free from violence, and to draw people together to attain peace, justice, and freedom and dignity for all.

Litigation Secretary Inessa Aristakesyan, wed to Dan Gentile.

Sr. Records Clerk, Jennifer Cruz wed to David Loyola.

Bradley & Gmelich LLP employees happily celebrated Records Supervisor Kristina Nazarian and Mike Calzada as they eagerly await the birth of their first baby. We'll keep you posted!