QUESTION:
Last month, I was flipped off my bike while cycling on a severely jagged and missing sidewalk. I fell on what appears to be a business property not currently owned but is up for sale. The sidewalk I fell on was on this property. I sustained quite a few injuries and left the scene bleeding. A few days later my back began to hurt too. There was an actual witness to the entire accident because I landed in traffic. I did not go to the hospital nor had any of my injuries reported. Do I even have a case? It is now a month later and I believe I may have seriously injured my elbow which took the brunt of the fall because I can’t even rest on it until now.
ANSWER:
Generally, landowners and others with a possessory or nonpossessory 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. A “recreational purpose” for purposes of immunity includes activities such as “fishing, hunting, camping, water sports, hiking, spelunking, sport parachuting, riding, including animal riding, snowmobiling, and all other types of vehicular riding, rock collecting, sightseeing, picnicking, nature study, nature contacting, recreational gardening, gleaning, hang gliding, winter sports,and viewing or enjoying historical, archaeological, scenic, natural, or scientific sites.” . Other recreational uses similar to those listed likewise fall within the purview of the statute. [Ornelas v. Randolph, supra, 4 C4th at 1100–1101, 17 CR2d at 597–598—children playing on and around old farm equipment engaged in recreational activity; “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 v. Randolph, supra, 4 C4th at 1108–1109, 17 CR2d at 603].
However, an exception to this immunity rule is when there exists 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. It would be best to seek assistance from a lawyer in order to guide you with your personal injury claim.
