KLEIN v. >UNITED
STATES OF AMERICA >















Filed 7/26/10













IN THE SUPREME
COURT OF CALIFORNIA











ALAN RICHARD KLEIN et al., )

)

Plaintiffs
and Appellants, )

)

v. )
S165549

)

UNITED STATES OF AMERICA et al., ) 9th
Cir. No. 06-55510

) C.D.
Cal. No.

Defendants and Respondents. )
CV-05-05526-PA

__________________________________ )







STORY CONTINUE FROM
PART II….







Land may be
unsuitable for recreation, and the owner may attempt to prevent recreational
trespassing, not only because of dangerous physical conditions of the land
itself, but because the activities the owner is conducting on the property --
whether industrial, agricultural, commercial, residential, or even recreational
-- simply make it incompatible with recreational use by outsiders. No reason appears why those activities, if
not willful or malicious, should nonetheless expose the owner to tort liability
when a trespasser who enters the land for recreational purposes is injured.

Despite all
this, the majority concludes that section 846's basic immunity extends only to
the physical condition of the land itself, not to uses or activities on the
land by the owner, such as the operation of a motor vehicle by the owner (or
the owner's employee). To support its
conclusion, the majority first points to features of the statutory
language. However, I respectfully
submit that the majority's parsing of the statute does not withstand
scrutiny. To put my views in context, I
briefly review the statutory terms.

For our
purposes, the significant portions of section 846 are contained in the first,
third, and fourth paragraphs. The first
paragraph provides in pertinent part that one with a possessory
interest in real property â€