Case Summary

4899 To qualify as willful misconduct under Civil Code section 846 (Recreational Use Immunity) defendant must have actual or constructive knowledge of the peril, actual or constructive knowledge that injury is probable and not just possible, and must consciously fail to act to avoid the peril; before determining whether it is probable that a child who climbs a transmission tower will be injured, it is necessary to determine whether it is probable that a child will climb the tower at all; evidence that defendant incorrectly installed anti-climbing guards on its tower does not establish that defendant failed to act, but rather that defendant acted negligently; since the Civil Code section eliminates a landholder's duty of reasonable care to recreational users, liability cannot be imposed for negligence.

MANUEL v PG&E (Transmission Tower) 173 CA4 927 [See: CivC 846; Bacon v So Cal Edison 53 CA4 854, T/AT 4/97; Jackson v PG&E 94 CA4 1110, T/AT 2/02; Ornelas v Randolph 4 C4 1095, T/AT 5/93]