Garcia v. American Golf Corp. , 218 Cal. Rptr. 3d 25 ( 2017 )

Filed 5/3/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
JACOBO G. GARCIA, a Minor, etc., B267613
et al.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No. GC050056)
v.
AMERICAN GOLF CORPORATION
et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Howard L. Halm, Judge. Reversed.
Robert D. Feighner; Law Offices of Edward J. Deason, and
Edward J. Deason, for Plaintiffs and Appellants.
Michele Beal Bagneris, City Attorney, Ann Sherwood
Rider, Assistant City Attorney; Law Offices of Michael R.
Nebenzahl, Michael R. Nebenzahl; Carpenter, Rothans &
Dumont, and Justin Reade Sarno, for Defendant and Respondent
City of Pasadena.
Daley & Heft and Lee H. Roistacher for League of
California Cities and California State Association of Counties as
Amici Curiae on behalf of Defendant and Respondent City of
Pasadena.
_________________________
In this opinion, we hold that the trail immunity in
Government Code section 831.41 does not immunize a dangerous
condition of a commercially operated, revenue generating public
golf course that causes injury to pedestrians on an adjacent trail.
Consequently, we reverse the summary judgment entered in
favor of City of Pasadena (City) on the claims by Jacobo G. Garcia
(Jacobo) and his mother, Ana Pavon (Pavon), (collectively
appellants) that they were injured by a dangerous condition of
City owned property known as the Brookside Golf Course when
Jacobo was hit by an errant golf ball on a walkway City contends
is a trail.2
1 All further statutory references are to the Government
Code unless otherwise specified.
2 Below, the parties disputed whether the walkway at issue
is a trail under section 831.4. We need not decide that issue.
Even if the walkway qualifies as a trail, City is not entitled to
trail immunity. For purposes of this opinion, we presume
without deciding that the walkway is a trail.
2
FACTS
The Brookside Golf Course is owned by City and managed
and operated by American Golf Corporation (American Golf)
pursuant to a lease agreement. Within the Brookside Golf
Course there are two 18-hole golf courses, the E.O. Nay Course
and the C.W. Koiner Course.
The Rose Bowl Loop (Loop) is comprised of roadways
(including West Drive) that encircle the Rose Bowl Stadium and
the Brookside Golf Course. These roads provide access to
recreational areas within the Central Arroyo Park and Brookside
Park, including the golf course, stadium, a children’s museum,
tennis courts, aquatics center, baseball and soccer fields,
equestrian facilities and open park space. People use the Loop
for walking, jogging, skating and bicycling.
In 2001, after a person was hit by a golf ball outside the
Brookside Golf Course, City erected safety nets at the 12th, 17th
and 18th holes of the C.W. Koiner Course.
There is a 13-foot wide pedestrian walkway (walkway)
along the Loop. To distinguish it from the black asphalt
roadway, the walkway is light brown in color. Also, it is
separated from the roadway by a 12-inch wide white painted line
as well as flexible delineators that City placed on the white line
at 100 foot intervals. The Brookside Golf Course is separated
from the walkway by a concrete wall topped by a chain link fence.
There are various chain link gates in the fence that give motor
vehicles access to the golf course for use as a parking lot during
major events at the Rose Bowl. Both the fence and gates are
3
approximately seven feet six inches high.3 Inside the Brookside
Golf Course, posted on the fence surrounding it, there are
warning signs that read: “NOTICE [¶] YOU ARE WITHIN A
GOLF COURSE AREA. [¶] YOU ASSUME THE RISK OF
GOLF BALLS AND OTHER RECREATIONAL USERS.”
On September 30, 2011, Jacobo was hit in the head by an
errant golf ball while Pavon was pushing him in a stroller on the
walkway. They were traveling along West Drive and near the
first post of the gate for Lot 6, which is adjacent to the 15th hole
of the C.W. Koiner Course.
Appellants filed a government claim on February 22, 2012,
which alleged: “Claimant [Jacobo] was struck in the head by a
golf ball. He was transported by ambulance to Huntington
Memorial Hospital and transferred to Children’s Hospital where
he was diagnosed with a brain injury, including a subdural
hematoma. He experienced significant pain, cognitive
difficulties, urinary dysfunction, eye injuries, and emotional
distress. Claimant [Pavon] suffered emotional distress and the
consequences of caring for [Jacobo].” Regarding the acts or
omissions of City, appellants averred: “Failure of the public
entity to protect against a dangerous condition on public property
pursuant to [sections] 830 and 835. The public entity permitted a
dangerous activity of a golf course next to a public
sidewalk/walking and biking area; failed to protect against the
known risk of golf balls leaving the golf course and striking
persons on public property, but not on the golf course; failed to
3 Appellants maintain that although “the fence measures 7
feet, 6 inches above the sidewalk,” it is “only 6 feet, 6 inches from
the golf course elevation.”
4
erect fences or other barriers to protect the public or arrange the
golf course to minimize this risk or adequately warn golfers and
pedestrians of this risk.”
Appellants sued American Golf for negligence and City for
dangerous condition of public property.
City filed a motion for summary judgment and argued
there was no dangerous condition of the walkway, City did not
have actual or constructive notice of a dangerous condition of the
walkway, and City was entitled to immunity under sections
831.4, 830.6, 820.8, 820.2 and 835.4. Also, City argued that it
could not be liable because warning signs were posted, and Pavon
assumed the risk because she was aware of, or should have been
aware of, the danger of errant golf balls.
In opposition, appellants argued that none of City’s
statutory defenses had merit in large part because a dangerous
condition of the walkway was not at issue. Rather, the issue was
a dangerous condition of the Brookside Golf Course, i.e., the
fairways were too narrow and had too few trees, and the fences
were too low. As for the warning signs, appellants argued, inter
alia, that there was no evidence City erected them, and they did
not provide a reasonable warning to pedestrians outside the golf
course of the hazard posed by errant golf balls.
In support of their argument regarding the signs,
appellants pointed out that Bahman Janka (Janka), City’s project
director for the walkway as well as transportation administrator
of its Department of Transportation, testified during deposition
that he does not know who installed the signs, when they were
installed or who maintains them. In addition, Janka testified he
does not know who owns the signs or fence around the Brookside
Golf Course. David Sams (Sams), City’s person most
5
knowledgeable concerning the management of the Brookside Golf
Course and administration of the lease with American Golf
testified during deposition that he does not know who erected the
signs, when they were erected, or who owns the signs. Kyle A.
Mitchell (Mitchell), the general manager of the Brookside Golf
Course, testified during deposition that he is not aware of any
signs warning pedestrians of golf balls. Appellants’ civil
engineering expert, Brad P. Avrit (Avrit), provided a declaration
stating: “[T]he warning signs posted on the fence separating the
golf course and the public walkway were not fully visible for an
approaching pedestrian exercising reasonable care. . . .
Furthermore, even if a pedestrian does read the warning signs, it
is impossible to anticipate when and where a golf ball will come
flying over the fence. . . . In addition, the warning on these signs
[does] not tell a pedestrian what to do to protect themselves from
a small, hard golf ball flying over the fence of the golf course.
Thus, it is my opinion that the warnings signs posted every few
hundred feet are not positioned to provide adequate warning, and
thus do not adequately protect or warn pedestrians” who are
using the walkway.
With respect to the design of the Brookside Golf Course,
appellants submitted the expert declaration of Michael J.
Hurdzan. He declared: The area where Jacobo was hit “is
inherently unsafe for cars and pedestrians on or along West
Drive because of errant golf balls entering that area.” City knew
or should have known that there “would be a reasonably high
likelihood of golf balls landing in that vicinity. Protection of
pedestrians using the [Loop] could have easily been accomplished
by good design or remedial measures.” “[G]olf course operators
should be vigilant to observe any place on or near their golf
6
course where errant golf balls could hit unsuspecting people or
property. This is especially true on a highly traveled area such
as the [Loop] where the golf holes and probable play areas are so
close together. At the 15th hole, the only barrier between the golf
fairway and West Drive is a [six foot, eight inch] fence and some
small and somewhat thin foliage trees that are more of a visual
barrier than an effective ball stopping barrier. . . . The trees are
not dense enough to stop golf balls, but being a visual barrier,
actually contribute to [a problem] because golfers cannot see
pedestrians to warn them, nor can pedestrians see all of the
golfers or golf balls that could cause them harm. The trees are
not effectual safeguards. The fence is too low to provide adequate
protection.”
In further support of their dangerous condition argument,
appellants submitted the deposition of Sams in which he testified
that he had personally hit golf balls over the fence near the
Brookside Golf Course. He had seen about five people hit golf
balls over the fence of the 15th hole of the C.W. Koiner Course.
This occurred with either a tee shot or a second shot.
The trial court granted City’s motion. In its written ruling,
the trial court concluded that City was entitled to trail immunity.
As a result, the trial court declined to reach City’s other
immunity defenses.4
4 The trial court provided an advisory ruling on the following
question: “despite the Trail Immunity, can City be liable for the
dangerous condition of the Golf Course because City owns the
Golf Course?” The trial court found triable issues as to whether
there was a dangerous condition, whether City had actual notice
of the dangerous condition, and whether City took sufficient
action to protect against the risk of injury by posting warning
signs.
7
A judgment of dismissal was entered.
This timely appeal followed.
DISCUSSION
I. Standard of Review.
“An order granting summary judgment is subject to de novo
review. [Citation.]” (Moreno v. Quemuel (2013) 219 Cal.App.4th
914, 917–918.) Like the trial court, we employ a three-step
analysis: “‘First, we identify the issues framed by the pleadings.
Next, we determine whether the moving party has established
facts justifying judgment in its favor. Finally, if the moving party
has carried its initial burden, we decide whether the opposing
party has demonstrated the existence of a triable, material fact
issue. [Citation.]’ [Citation.]” (Supervalu, Inc. v. Wexford
Underwriting Managers, Inc. (2009) 175 Cal.App.4th 64, 71.)
II. Dangerous Condition of Public Property.
A dangerous condition of public property “means a
condition of property that creates a substantial (as distinguished
from a minor, trivial or insignificant) risk of injury when such
property or adjacent property is used with due care in a manner
in which it is reasonably foreseeable that it will be used.” (§ 830,
subd. (a).) “Except as provided by statute, a public entity is liable
for injury caused by a dangerous condition of its property if the
plaintiff establishes that the property was in a dangerous
condition at the time of the injury, that the injury was
proximately caused by the dangerous condition, that the
dangerous condition created a reasonably foreseeable risk of the
kind of injury which was incurred, and that either: [¶] (a) A
negligent or wrongful act or omission of an employee of the public
entity within the scope of his employment created the dangerous
condition; or [¶] (b) The public entity had actual or constructive
8
notice of the dangerous condition under Section 835.2 a sufficient
time prior to the injury to have taken measures to protect against
the dangerous condition.” (§ 835.)
As explained by our Supreme Court, the following are “well
established: first, that the location of public property, by virtue
of which users are subjected to hazards on adjacent property,
may constitute a ‘dangerous condition’ under [Government Code]
sections 830 and 835; second, that a physical condition of the
public property that increases the risk of injury from third party
conduct may be a ‘dangerous condition’ under the statutes.”
(Bonanno v. Central Contra Costa Transit Authority (2003) 30
Cal.4th 139, 154 (Bonanno).)
III. Trail Immunity.
Neither a public entity nor a grantor of a public easement
to a public entity is liable for injury caused by, inter alia, a
condition of: “(a) Any unpaved road which provides access to
fishing, hunting, camping, hiking, riding, including animal and
all types of vehicular riding, water sports, recreational or scenic
areas and which is not a (1) city street or highway or (2) county,
state or federal highway or (3) public street or highway of a joint
highway district, boulevard district, bridge and highway district
or similar district formed for the improvement or building of
public streets or highways. [¶] (b) Any trail used for the above
purposes.” (§ 831.4.)
Whether property qualifies for immunity “depends on a
number of considerations, including accepted definitions of [the
word trail] [citations], the purpose for which the property is
designed and used, and the purpose of the immunity statute
[citation].” (Amberger-Warren v. City of Piedmont (2006) 143
Cal.App.4th 1074, 1078–1079 (Amberger-Warren).)
9
In Amberger-Warren, the plaintiff, her friend and their two
dogs were in a fenced-in, off-leash lower loop section of a dog park
owned by a public entity. The lower loop was a paved pathway
across a hill, which was described as a dirt embankment. When
the plaintiff went up the pathway to put a leash on her dog, she
was bumped by either her dog or her friend’s dog and slipped on
some debris on the pathway. She fell backward, landing partway
off the pathway. To avoid tumbling down the hill, she grabbed an
exposed cement edge and injured her hand. (Amberger-Warren,
supra, 143 Cal.App.4th at pp. 1077–1078.)
The court concluded as a matter of law that the pathway
was a trail under section 831.4. (Amberger-Warren, supra, 143
Cal.App.4th at p. 1078.) After reaching that conclusion, the court
moved on to the next issue, which was whether the injury was
caused by a condition of the trail. (Id. at p. 1083.)
The plaintiff argued that her injury was caused by
dangerous conditions unrelated to the trail, “including: allowing
dogs to run unleashed in the park; permitting debris to
accumulate on the trail; failing to install a guardrail where the
accident occurred; and locating the trail in a dangerous area, i.e.,
next to a slope onto which people could fall.” (Amberger-Warren,
supra, 143 Cal.App.4th at p. 1083.)
The court noted that the public entity was not liable for
harm caused by third party actors “such as plaintiff’s own
unleashed dog unless some unimmunized conduct on its part
contributed to that harm.” (Amberger-Warren, supra, 143
Cal.App.4th at p. 1084.) As a result, the plaintiff’s case had to
hinge on the other conditions she identified. But the trail
immunity covered debris on the pathway. Moreover, trail
immunity applied to the design of the trail, which included the
10
absence of a guardrail. Finally, the court concluded that the hill
was “not unrelated to the trail because the trail is what provides
access to the hill and exposure to the alleged danger.” (Id. at
p. 1085.) The court reasoned that “location, no less than design,
is an integral feature of a trail, and both must be immunized for
the same reasons. To accept plaintiff’s argument would be to
require installation of handrails or other safety devices on trails,
or relocation of trails, whenever the surroundings could otherwise
be considered unreasonably dangerous. The likely and
unacceptable result, which the immunity was created to avoid,
would be the closure of many trails in areas that could be deemed
at all hazardous.” (Ibid.)
In our view, the court did not hold that there must be
immunity for every injury occurring on a trail when an adjacent
public property was a contributing factor. Rather, the court
examined the causation question in light of the policy of section
831.4. It identified the issue as whether a trail and an adjacent
public property meet a relatedness test. That test has two parts:
proximity and liability that will likely cause the trail to close.
Thus, the Amberger-Warren court embraced a nuanced, policy
based relatedness test for determining whether an injury is
caused by a condition of a trail when an adjacent public property
may have contributed to the injury.
Subsequently, the court in Prokop v. City of Los Angeles
(2007) 150 Cal.App.4th 1332 (Prokop) held that a city had
“absolute immunity under [section 831.4] from liability for
injuries by a bicyclist who collided with a chain link fence
immediately after exiting a class I bikeway located” along a river.
(Prokop, supra, at p. 1335.) The court noted that precedent
established that “a paved class I bikeway is a ‘trail’ within the
11
meaning of section 831.4[.]” (Id. at p. 1338.) It rejected the
argument that immunity did not apply because the accident
occurred outside the confines of the bikeway. Citing Amberger-
Warren, the Prokop court stated, “A gateway to or from a bike
path is patently an integral part of the bike path. [Citation.]”
(Id. at p. 1342.) Because Prokop determined the gate was part of
the trail at issue, the bike path, it did not have to decide whether
an adjacent public property had caused injury.
Most recently, Leyva v. Crocket & Co., Inc. (2017) 7
Cal.App.5th 1105 (Leyva) was decided. In that case, the private
owner of a golf course granted the City of San Diego two public
easements for an unpaved recreational hiking and equestrian
trail running parallel to the golf course. The owner was sued
when a person using the trail was hit by a golf ball. (Id. at
p. 1111.)
Even if the trail came within section 831.4, the injured
plaintiff in Leyva, Miguel Leyva, and his wife argued that “the
trail’s location next to the golf course ‘has nothing to do with the
fact that [the victim] was injured by a golf ball from the
[adjacent] property,’ and the golf course’s lack of safety barriers
on the 13th hole is not a faulty design or condition of the trail.”
(Leyva, supra, 7 Cal.App.5th at p. 1110.)
The court rejected this argument, citing to Amberger-
Warren and Prokop. It stated, “Here, the Leyvas are incorrect to
argue the location of the trail next to the golf course is unrelated
to [Miguel Leyva’s] injuries: [He] would not have been struck by
the golf ball if he had not been walking on a trail located next to
the golf course. Just as the trail’s location next to a hill in
[Amberger-Warren] is an integral feature of the trail, so is the
trail’s location next to the golf course. Further, it makes no
12
difference whether the alleged negligence in failing to erect safety
barriers along the boundary between the golf course and the trail
occurred on the golf course or on the trail itself because the effect
is the same. [¶] Additionally, the erection of a safety barrier on
the boundary of the golf course is equivalent to the installation of
a handrail in Amberger-Warren. In that case, the court observed,
“‘[w]e presume that there are many miles of public trails on
slopes in this state that could be made safer with handrails, and
that handrails would perhaps enhance the safety of all trails,
wherever located, that bear pedestrian traffic. But to require
installation of handrails along every public trail where it might
be reasonably prudent to do so would greatly undermine the
immunity’s objective of encouraging access to recreational
areas . . . .’ [Citation.] Similarly, public pathways along golf
courses certainly could be made safer by cordoning off or erecting
high barriers between the golf courses and trails. However,
setting aside how the aesthetics of such barriers could mar the
recreational experience for trail users, the burden and expense of
erecting barriers to make recreational trails entirely safe from
errant golf balls would chill private landowners . . . from granting
public easements to public entities along golf courses, resulting in
closure of such areas to public use. [Citation.]” (Leyva, supra, 7
Cal.App.5th at pp. 1110–1111.)
This triad of cases—Amberger-Warren, Prokop and Leyva—
are at the heart of whether City is entitled to trail immunity.
IV. City Cannot Claim Trail Immunity.
Presuming for the sake of argument that the walkway is a
trail for purposes of section 831.4, the crux of this case is whether
the injury to Jacobo was caused by a dangerous condition of the
13
walkway for purposes of trail immunity. To determine this issue,
we must interpret section 831.4.
When engaging in statutory interpretation, our goal is to
ascertain the intent of the Legislature. “If the language is clear
and unambiguous, the court presumes that the Legislature
meant what it said and the inquiry ends. But if the statute is
ambiguous, i.e., it is susceptible to more than one reasonable
interpretation, the court may use a variety of extrinsic aids. For
example, it may consider the ostensible objects to be achieved,
the evils to be remedied, the legislative history, public policy,
contemporaneous administrative construction, and the statutory
scheme of which the statute is a part. In addition, the court may
consider the consequences that will flow from a particular
interpretation. [Citations.]” (Jewish Community Centers
Development Corp. v. County of Los Angeles (2016) 243
Cal.App.4th 700, 708.) A court “construing an ambiguous statute
must avoid, if it can, an interpretation that would lead to absurd
consequences. [Citation.]” (Id. at p. 712.)
The plain language of section 831.4 provides immunity for
injuries caused by dangerous conditions of trails, but it does not
provide immunity for injuries caused by dangerous conditions of
adjacent public properties. We perceive no ambiguity in section
831.4 on this point. But, as recognized in Bonanno, the location
of public property can be a dangerous condition, and so too can
the physical condition of a public property that increases the risk
of injury from third party conduct. When, if ever, must a
dangerous condition of an adjacent public property that increases
the risk of injury from third party conduct be considered a
dangerous condition of a trail such that the shield of section 831.4
will cover the adjacent public property? The statute does not
14
specify, leaving us with an ambiguity. Amberger-Warren resolves
the ambiguity with the relatedness test. In other words, unless
properties are deemed related for policy reasons, courts will not
immunize adjacent public properties.
The Brookside Golf Course does not pass the relatedness
test. As we explain below, Amberger-Wilson, Prokop and Leyva
are not analogous.
The trail in Amberger-Warren was next to a hill described
as a dirt embankment, which posed a danger of people falling.
The presence or absence of guardrails would not have been an
issue but for the trail. It is true that the plaintiff’s fear of
tumbling down the hill was a causal factor in her hand injury,
but it is also true that she would not have injured her hand
without being bumped by an unleashed dog, slipping on debris,
falling backwards and grabbing an exposed cement edge of the
trail, and if the trail had guardrails. In other words, the
unleashed dog as well as conditions of the trail other than its
location were substantial factors in the injury. Moreover, the
trail was the very thing that provided the public access to the
hill. Beyond that, neither the trail nor hill were commercial
enterprises that earned profits that could be used for
maintenance, safety features, and insurance, and for paying
lawyers and judgments. Thus, imposing liability would have
given public entities the choice of either paying for guardrails on
trails next to hills or closing such trails. Due to the expense, it
was likely the trails would be closed and the public would be
deprived of the use and enjoyment of trails and related parks.
For policy reasons, the trail and its location next to the hill could
not be separated with respect to analyzing trail immunity.
15
In contrast, policy dictates that the walkway and the
Brookside Golf Course be given separate immunity analysis, at
least with respect to a danger posed by third party conduct on the
golf course.
The Brookside Golf Course is a developed and commercially
operated golf course that introduced the danger of people using
the Loop getting hit by errant golf balls. In other words, there is
a risk of harm posed by third parties, i.e., golfers. This danger is
the result of a human creation in contrast to the naturally
occurring danger posed by the hill in Amberger-Warren due to
topography and gravity. It is common knowledge that when golf
courses are in areas where errant golf balls could cause injury
outside of the courses in spaces frequented by people and
vehicles, they are designed to protect against such injury. And
the fact that the Brookside Golf Course has a fence and
strategically placed trees leads to the reasonably deducible
inference that—whether successful or not—it was designed to
protect people outside the course from errant golf balls hit by
golfers. This clearly indicates that the designer and City were
aware of the potential harm that errant golf balls might cause
absent safety precautions. The danger of errant golf balls (and
need for safety) exists for people outside the Brookside Golf
Course regardless of whether they use the walkway. As a
commercial enterprise that generates revenue, the Brookside Golf
Course can pay for safety features such as the safety nets that it
erected in 2001 after a pedestrian was hit by an errant golf ball.
It can obtain insurance, and it can pay lawyers and judgments.
In addition, it is the Loop, of which the walkway is only a
small part, that provides access to the golf course. If the
walkway was eliminated—if the area it occupies was merged into
16
part of the street or turned into a sidewalk—the Loop would still
provide access to the golf course.
Though the trail and Brookside Golf Course have close
proximity, it is not likely that liability will cause City to close the
trail given that the golf course generates revenues that can pay
for maintenance and judgments. It is fair to deny the City trail
immunity for a dangerous condition of the Brookside Golf Course
that increases the risk of harm by third party conduct. Rather
than prompting the closure of trails that abut public streets and
are adjacent to publicly owned golf courses, liability will prompt
such golf courses to take corrective action in a manner consistent
with the accepted and expected methods of managing golf
courses.
A bulwark to our conclusion is that recognizing immunity
here would give City a disincentive to correct a dangerous
condition of the Brookside Golf Course even if the course is
revenue generating. And if the Brookside Golf Course has a
dangerous condition, recognizing immunity would have the
absurd consequence of requiring City to protect people using the
Loop from getting hit by an errant golf ball except anyone who
happens to be using the walkway.
Stripped down to its essence, we determine the following.
The Amberger-Warren court was confronted with a case that
involved dual dangerous conditions—the location of the trail and
the slope of the hill—and decided the dangerous conditions
should be deemed related. This served pragmatism because the
trail and hill were part of the same park and presumably under
the same management, and the fate of the trail and access to the
hill were tied together because making them safer would involve
changing the design of the trail by installing guardrails. The
17
walkway and the Brookside Golf Course also, arguably, have dual
dangerous conditions—location of the walkway and insufficient
fences and/or trees to block errant golf balls. But the walkway
and the golf course are separable by different uses as well by the
golf course’s revenues. If City is held liable, it will be prompted
to correct the design of the golf course rather than the design of
the trail. Thus, these two arguable dangerous conditions are not
related, and immunity for one should not be immunity for both.
Though City urges us to conclude that Prokop dictates a
decision in its favor, we disagree. The gate in Prokop did not
exist without the bikeway because they were both part of the
design of the bikeway beyond mere location. And, the gate was
not a separate, commercially operated property that could finance
safety measures. Accordingly, there is no analogy between the
facts and policies in Prokop and those here.
This brings us to Leyva. It provides no assistance to City
because it involved materially different facts. The condition of
the golf course could not be dangerous but for the trails. As we
have indicated, the danger posed by the Brookside Golf Course
would exist even if the walkway did not; there would still be a
danger of errant golf balls hitting motorists and recreational
users of the Rose Bowl Loop. Also, here, the Brookside Golf
Course has fences and trees designed for protection of Rose Bowl
Loop users, and the issue is the adequacy of those measures as
opposed to their absence. Also, the Leyva court was concerned
that liability in that case would discourage private landowners
from granting easements for public use. That, of course, is not a
concern in this case.
Based on all these considerations, a public golf course
cannot assert a trail immunity defense when: (1) the golf course
18
is adjacent to a trail abutting a public street; (2) the golf course is
a commercially operated, revenue-generating enterprise; (3) the
golf course has a dangerous condition that exposes people outside
it to a risk of harm from third parties hitting errant golf balls;
and (4) the dangerous condition of the golf course caused harm to
a user of the trail.
To be complete, we acknowledge that City would have us
affirm based on the holdings of Burgueno v. Regents of University
of California (2015 ) 243 Cal.App.4th 1052, 1061 (Burgueno) and
Hartt v. County of Los Angeles (2011) 197 Cal.App.4th 1391(Hartt). But neither case is on point. Burgueno involved a fatal
collision on the Great Meadow Bikeway, which is on the campus
of the University of California, Santa Cruz. The plaintiffs argued
that the Great Meadow Bikeway was not a trail under section
831.4 because it had a dual use, one being transportation and the
other being recreation. The court held: “Since the Great Meadow
Bikeway has mixed uses that undisputedly include recreation,
the Regents have trail immunity under section 831.4, subdivision
(b) from claims, such as plaintiffs’ claims, that arise from the
condition of the Great Meadow Bikeway.” (Burgueno, supra, at
p. 1061.) The court relied, in part, on Hartt, which held that the
mixed use of a path by service vehicles and recreational cycling
did not defeat trail immunity. (Hartt, supra, at p. 1400.) These
cases pertain to whether a particular path qualifies as a trail for
purposes of trail immunity. Neither case analyzes a causation
issue similar to the one herein.
V. City’s Warning Sign and Assumption of Risk Defenses.
City contends that it is entitled to summary judgment
because there were warning signs on the Brookside Golf Course
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fence, and because appellants assumed the risk of injury caused
by errant golf balls.
A “public entity is not liable for injuries proximately caused
by the dangerous condition if it renders an adequate warning.”
(Foremost Dairies, Inc. v. State of California (1986) 190
Cal.App.3d 361, 367.) “Whether [a] warning was adequate is
ordinarily a question of fact, but it may ‘be resolved as a question
of law if reasonable minds can come to but one conclusion.
[Citations.]’” (Ibid.)
The initial flaw in City’s warning sign defense is that there
is no evidence that it installed, owns or maintains the signs. City
does not argue that we should infer that it installed, owns and
maintains the signs, and it cited no law establishing that it is
entitled to a defense based on warning signs erected by a third
party. Ultimately, these issues are moot for our purposes
because reasonable minds can differ regarding the adequacy of
the warning signs, which is illustrated by Avrit’s expert opinion
that the warning signs were not adequate due to their placement
as well as their verbiage. Thus, the adequacy of the signs must
be decided by a trier of fact.
This brings us to assumption of risk.
“The doctrine of primary assumption of risk is applied to
certain sports or sports-related recreational activities where
‘conditions or conduct that otherwise might be viewed as
dangerous often are an integral part of the sport itself’ and their
removal would alter the nature of the sport. [Citation.]” (Childs
v. County of Santa Barbara (2004) 115 Cal.App.4th 64, 69–70.)
Secondary assumption of risk arises where “the defendant owes a
duty to a plaintiff who is careless in encountering a known risk
created by the defendant’s breach of its duty. [Citation.]
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Primary assumption of risk is a complete bar to recovery.
Secondary assumption of risk ‘is merged into the comparative
fault scheme, and the trier of fact, in apportioning the loss
resulting from the injury, may consider the relative responsibility
of the parties.’ [Citation.]” (Id. at p. 69.)
City argues we should affirm based on Shin v. Ahn (2007)
42 Cal.4th 482 (Shin), a case in which our Supreme Court held
that the primary assumption of risk doctrine barred a golfer from
suing a coparticipant after being struck by a golf ball. (Id. at
p. 486.) Shin is inapposite because Jacobo and Pavon were not
participants in the sport of golf at the time of the accident.
Next, City asks us to follow the reasoning of McGuire v.
New Orleans City Park Improvement Association (2003) 835 So.2d
416 (McGuire). There, the court relied on Louisiana’s duty-risk
analysis to bar suit after a jogger was hit by a golf ball while
jogging on the roadway in a park with a golf course. Because
McGuire does not apply California’s primary assumption of risk
doctrine, it is not persuasive, and we decline to factor it into our
analysis. It bears mentioning, however, that the McGuire court
reached its conclusion because the plaintiff knowingly
encountered the risk. Here, if appellants were aware of the risk
and were careless in encountering it, that would only establish
secondary assumption of the risk. Accordingly, summary
judgment would not be appropriate because there would still be
an issue of fact, i.e., apportionment of fault under comparative
fault principles.
VI. Other Immunity Issues.
City requests that we affirm summary judgment based on
the immunities afforded by sections 830.6, 820.2 and 815.2,
subdivision (b). We decline.
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“Neither a public entity nor a public employee is liable
. . . for an injury caused by the plan or design of a construction of,
or an improvement to, public property where such plan or design
has been approved in advance of the construction or improvement
by the legislative body of the public entity or by some other body
or employee exercising discretionary authority to give such
approval or where such plan or design is prepared in conformity
with standards previously so approved, if the trial or appellate
court determines that there is any substantial evidence upon the
basis of which (a) a reasonable public employee could have
adopted the plan or design or the standards therefor or (b) a
reasonable legislative body or other body or employee could have
approved the plan or design or the standards therefor.” (§ 830.6.)
“A public entity claiming design immunity must show the
existence of three elements, ‘“(1) [a] causal relationship between
the plan and the accident; (2) discretionary approval of the plan
prior to construction; [and] (3) substantial evidence supporting
the reasonableness of the design.”’ [Citations.]” (Grenier v. City
of Irwindale (1997) 57 Cal.App.4th 931, 939.)
City argues that there is a causal relationship between the
plan or design of the Loop and the accident; the design for the
Loop was approved by City or a City employee exercising
discretionary authority in advance of construction; and there is
substantial evidence that a reasonable public entity or employee
could have approved the design. But as we have indicated in
connection with our trail immunity discussion, a dangerous
condition of the walkway’s location cannot be conflated with a
dangerous condition of the Brookside Golf Course’s lack of fences
and/or trees, and any contribution of the walkway’s location to
appellants’ injuries cannot exonerate City from liability with
22
respect to a dangerous condition of the Brookside Golf Course.
The same reasoning applies to design immunity. In other words,
even if City could establish design immunity for the walkway,
that would not foreclose liability for injury caused by a dangerous
condition of the Brookside Golf Course. Once again, our
reasoning is informed by policy. A commercially operated and
revenue-generating golf course should not be absolved of liability
if it would not otherwise qualify for design immunity on its own
merit simply because a dangerous condition of that golf course
happens to cause harm on an adjacent trail. For a commercially
operated and revenue-generating golf course to use the shield of
design immunity, it must prove discretionary approval of its plan
(versus the plan of an adjacent trail) prior to construction, and
substantial evidence supporting the reasonableness of its design
(versus the design of an adjacent trail). For these reasons, City’s
arguments about the Loop are moot.
Section 820.2 provides that except as otherwise provided by
statute, “a public employee is not liable for an injury resulting
from his act or omission where the act or omission was the result
of the exercise of the discretion vested in him, whether or not
such discretion be abused.” Pursuant to section 815.2,
subdivision (b), and except as otherwise provided by statute, a
public entity cannot be held liable for an injury resulting from an
act or omission of an employee of the public entity where the
employee is immune from liability.
City argues that it is entitled to immunity under these
statutes for the discretionary design of the Loop and nearby
recreational areas. But appellants are suing based on a
dangerous condition of the Brookside Golf Course rather than an
injury resulting from an act or omission of a City employee, and
23
City has not explained how or why section 815.2, subdivision (b)
and section 820.2 would operate to immunize City from the
liability permitted by section 830.6. We note that the recognized
method for a public entity to avoid liability for a dangerous
condition of public property is through the affirmative defense of
design immunity. (Hampton v. County of San Diego (2015) 62
Cal.4th 340, 342–343.) As explained above, City failed to
establish that design immunity entitled it to summary judgment.
DISPOSITION
The judgment is reversed.
Appellants shall recover their costs on appeal.
CERTIFIED FOR PUBLICATION.
______________________, Acting P. J.
ASHMANN-GERST
We concur:
______________________, J.
CHAVEZ
______________________, J.*
GOODMAN
*
Retired Judge of the Los Angeles Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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