Haering v. County of San Bernardino CA4/1 ( 2024 )

Filed 2/23/24 Haering v. County of San Bernardino CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
KELLY HAERING, D082202
Plaintiff and Appellant,
v. (Super. Ct. No. CIVDS1934186)
COUNTY OF SAN BERNARDINO et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Bernardino
County, Bryan F. Foster, Judge. Affirmed.
Dordick Law Corporation, Gary A. Dordick, John M. Upton; The Arkin
Law Firm, Sharon J. Arkin; Belgum, Fry & Van Allen, Alan A. Carrico, and
Garret R. Fry for Plaintiff and Appellant.
Silver & Wright, Mahadhi Corzano; Fujii Law Group and John M. Fujii
for Defendants and Respondents.
Kelly Haering fell when she stepped in a depression in the pavement
while on a walkway through the Moonridge Animal Park in the San
Bernardino Mountains. Haering brought suit to recover for injuries she
sustained from the fall, asserting the property owners had negligently failed
to maintain the walkway and that it was in a dangerous condition at the time
of her fall. Haering sued the County of San Bernardino and the Big Bear
Valley Recreation and Park District, a Special District of the County of San
Bernardino, (collectively, County), which leased the property from a family
trust managed by Sandra and David Nolan, also named as defendants.1
The County brought a successful motion for summary judgment
asserting that Haering’s claims against it were barred by governmental
immunity under Government Code section 831.4, subdivision (b).2 The
statute creates immunity for public entities from liability for injuries caused
by the condition of any trail used for recreational purposes. On appeal from
the judgment entered in favor of the County, Haering asks us to reject settled
case law and conclude the statute does not apply to paved trails like the one
at issue here. In addition, Haering argues that triable issues of fact remain
as to whether or not the walkway she fell on is a “trail” used for recreational
purposes as required for immunity under section 831.4.
As we shall explain, we decline Haering’s invitation to rewrite settled
law holding that recreational trail immunity applies to paved trails like the
one here. Further, we agree with the trial court that no triable issues of fact
remain as to whether the walkway is a trail or whether it is used for
recreational purposes. Thus, Haering’s arguments do not support reversal of
1 The trial court granted summary adjudication of just one of Haering’s
three claims against the Nolans, and the litigation remained ongoing against
them at the time of appeal.
2 Subsequent undesignated statutory references are to the Government
Code.
2
the trial court’s order finding the County immune from liability and granting
summary judgment in its favor. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Big Bear Valley Recreation and Park District was formed by the
San Bernardino County’s Board of Supervisors by resolution on April 23,
1934. After a wildfire in 1959 devastated the San Bernardino Mountain eco-
system and its wildlife, the Big Bear Valley Recreation and Park District
entered into a 50-year lease to establish the Moonridge Animal Park (Animal
Park).
The Animal Park’s Lead Zookeeper, Summer McElroy, stated in her
declaration in support of the County’s motion for summary judgment that the
park was created as a shelter for injured or orphaned animals to allow them
“to heal in as close to a native environment as reasonably possible.” Further,
“the Animal Park was designed ... to be a mountain park for the general
public to observe the animals amongst the native fauna and flora of the San
Bernardino Mountains.” “[T]he animals are inside fenced areas” that are
designed “to duplicate their native environment, such as being surrounded by
native woodland trees and bushes, rocks, and woodland debris including logs
to retain the impression of a woodland environment for both the animals and
the general public. The entire Animal Park is landscaped in native mountain
flora including trees and bushes native to the Big Bear Lake area.”
Inside the Animal Park are “a series of asphalt covered access and
recreational trails leading away from the entry building into and amongst the
animals for use of the public.” No motor vehicles, except those used by the
park’s staff, are permitted inside the Animal Park. In her declaration,
McElroy stated the trails inside the park have been covered by asphalt for “at
least a couple decades” and are seasonally covered with snow and rain.
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“[T]he asphalt coating on the trails allows the Animal Park to keep the trails
reasonably safe for use by the general public and staff during the different
seasons of the year by allowing water and melting snow and ice to run off the
trails and not create puddles or mud on the trails.”
In the fall of 2019, Haering fell on one of the paved walkways in the
Animal Park. She and her husband were visiting the park to observe the
animals. In her deposition, Haering described the area of her fall as the main
walkway into the Animal Park, just past the entry building where a $12
entrance fee is collected. The walkway is about 15 feet wide, and Haering fell
in the middle of that path. When she fell, Haering stepped into a hole in the
asphalt, rolled her ankle and landed on her knee. Haering felt nauseous and
could not get up for a few minutes. Once she stood, an employee of the
Animal Park helped Haering to the restroom. The employee also placed a
safety cone over the hole in the asphalt. McElroy arrived shortly after and
provided Haering with an accident report form, which Haering completed.
Several months after her fall, Haering filed a complaint in the Superior
Court of San Bernardino County initiating this lawsuit. After amendments
to the pleadings and discovery, the County filed its motion for summary
judgment, asserting Haering’s claims were barred by the recreational trail
immunity statute, section 831.4. In her opposition to the motion, Haering
asserted the walkway was not a trail for purposes of the statute and “visiting
a zoo” was not a recreational activity under the statute. She also argued
there were triable issues of material fact as to whether the statute applied.
After the completion of briefing and supporting evidentiary submissions, the
parties argued the motion at a hearing.
After taking the matter under submission, the court issued its order
finding the recreational trail immunity statute precluded Haering’s claims
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against the County. The court later entered judgment in favor of the County
and the Big Bear Valley Recreation and Parks District. Haering timely
appealed.
DISCUSSION
I
Legal Standards
A
Standard of Review
“The standard of review for an order granting a motion for summary
judgment is de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
860 (Aguilar).) The trial court’s stated reasons for granting summary
judgment are not binding on the reviewing court, ‘which reviews the trial
courts’ ruling, not its rationale.’ ” (Burgueno v. Regents of University of
California (2015) 243 Cal.App.4th 1052, 1057 (Burgueno).) “In performing
our independent review, we apply the same three-step process as the trial
court. ‘Because summary judgment is defined by the material allegations in
the pleadings, we first look to the pleadings to identify the elements of the
causes of action for which relief is sought.’ ” (Ibid.)
“ ‘We then examine the moving party’s motion, including the evidence
offered in support of the motion.’ [Citation.] A defendant moving for
summary judgment has the initial burden of showing that a cause of action
lacks merit because one or more elements of the cause of action cannot be
established or there is a complete defense to that cause of action. (Code Civ.
Proc., § 437c, subd. (o); Aguilar, supra, 25 Cal.4th at p. 850.)” (Burgueno,
supra, 243 Cal.App.4th at p. 1057.) “[I]f the moving papers make a prima
facie showing that justifies a judgment in the defendant’s favor, the burden
shifts to the plaintiff to make a prima facie showing of the existence of a
5
triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar,
supra, 25 Cal.4th at p. 849.)” (Burgueno, at p. 1057.)
“In determining whether the parties have met their respective burdens,
‘the court must “consider all of the evidence” and “all” of the “inferences”
reasonably drawn therefrom [citation], and must view such evidence
[citations] and such inferences [citation], in the light most favorable to the
opposing party.’ (Aguilar, supra, 25 Cal.4th at p. 843.) ‘There is a triable
issue of material fact if, and only if, the evidence would allow a reasonable
trier of fact to find the underlying fact in favor of the party opposing the
motion in accordance with the applicable standard of proof.’ (Id. at p. 850,
fn. omitted.) Thus, a party ‘ “cannot avoid summary judgment by asserting
facts based on mere speculation and conjecture, but instead must produce
admissible evidence raising a triable issue of fact.” ’ ” (Burgueno, supra, 243
Cal.App.4th at p. 1057.)
Thus, we independently determine whether the County’s “motion for
summary judgment should have been granted on the ground that the
undisputed facts show that the action is barred as a matter of law under the
government immunity provided by section 831.4.” (Burgueno, supra, 243
Cal.App.4th at p. 1058.)
B
Recreational Trail Immunity
“ ‘A public entity is generally liable for an 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 and the public entity had actual
or constructive notice of the dangerous condition.’ ” (Loeb v. County of San
Diego (2019) 43 Cal.App.5th 421, 431 (Loeb).) However, the recreational trail
immunity statute, section 831.4, provides that a public entity “is not liable for
6
an injury caused by a condition of” the following: “(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;” or “(b) Any trail used for the above purposes.” (§ 831.4, subds. (a),
(b).) “[S]ubdivisions (a) and (b) should be read together such that immunity
attaches to trails providing access to recreational activities as well as to trails
on which those recreational activities take place.”3 (Lee v. Department of
Parks & Recreation (2019) 38 Cal.App.5th 206, 211 (Lee).)
“ ‘ “The plainly stated purpose of immunity for recreational activities on
public land is to encourage public entities to open their property for public
recreational use, because ‘the burden and expense of putting such property in
a safe condition and the expense of defending claims for injuries would
probably cause many public entities to close such areas to public use.’ ” ’ ”
(Loeb, supra, 43 Cal.App.5th at p. 431.) “Trail immunity applies to all
manner of defects in the trail’s condition.” (Ibid.; see also Amberger-Warren
v. City of Piedmont (2006) 143 Cal.App.4th 1074, 1084 (Amberger-Warren)
[“It is well-established that the immunity covers negligent maintenance of a
3 The final provision of the statute, subdivision (c), which does not apply
in this case, states that a public entity is not liable for an injury caused by
“Any paved trail, walkway, path, or sidewalk on an easement of way which
has been granted to a public entity, which easement provides access to any
unimproved property, so long as such public entity shall reasonably attempt
to provide adequate warnings of the existence of any condition of the paved
trail, walkway, path, or sidewalk which constitutes a hazard to health or
safety. Warnings required by this subdivision shall only be required where
pathways are paved, and such requirement shall not be construed to be a
standard of care for any unpaved pathways or roads.” (§ 831.4, subd. (c).)
This provision creates “qualified immunity for injuries caused by a condition
of a paved trail or path ‘on an easement of way which has been granted to a
public entity, which easement provides access to any unimproved property
....’ ” (Prokop v. City of Los Angeles (2007) 150 Cal.App.4th 1332, 1342
(Prokop).)
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trail”]; Treweek v. City of Napa (2000) 85 Cal.App.4th 221, 227 (Treweek) [“ ‘It
is ... clear that the state is absolutely immune from liability for injuries
caused by a physical defect of a trail.’ ”].)
“ ‘Whether a property is considered a “trail” under section 831.4 turns
on “a number of considerations,” including (1) the accepted definitions of the
property, (2) the purpose for which the property is designed and used, and
(3) the purpose of the immunity statute.’ (Lee, supra, 38 Cal.App.5th at
p. 211, quoting Amberger-Warren, supra, 143 Cal.App.4th at pp. 1077–1079
[extending trail immunity to ‘a paved pathway in an urban park setting’].)
Although this ‘ “is ordinarily viewed as an issue of fact [citation], it becomes
one of law if only one conclusion is possible.” ’ ” (Loeb, supra, 43 Cal.App.5th
at pp. 431–432.)
Courts have held repeatedly that “the ‘nature of the trail’s surface is
irrelevant to questions of immunity’ ” and “that section 831.4 applies to
paths, regardless of whether they are paved or unpaved.” (Lee, supra, 38
Cal.App.5th at pp. 211–212, citing Armenio v. County of San Mateo (1994) 28
Cal.App.4th 413, 418 (Armenio) [rejecting assertion that section 831.4,
subdivision (b) was not applicable to a paved bike path]; see Carroll v. County
of Los Angeles (1997) 60 Cal.App.4th 606, 609 (Carroll) [holding “[t]he words
‘trail’ and ‘path’ are synonymous” and that a paved bicycle path was a trail
for purposes of section 831.4, subdivision (b)]; Farnham v. City of Los Angeles
(1998) 68 Cal.App.4th 1097, 1102 (Farnham) [“appellate courts have so far
unanimously interpreted the current wording of section 831.4, subdivision (b)
to apply full immunity to any trail, paved or unpaved”]; Amberger-Warren,
supra, 143 Cal.App.4th at p. 1078 [“The immunity applies whether or not the
trail is paved.”]; Prokop, supra, 150 Cal.App.4th at p. 1342 [“the courts of
appeal have been unanimous in holding ... that the nature of a trail’s surface
8
is irrelevant to questions of immunity”]; Loeb, supra, 43 Cal.App.5th at p. 432
[same].)
II
Analysis
A
Recreational Trail Immunity Applies to the Animal Park’s Walkway4
As just noted, a long line of California Court of Appeal decisions,
including a relatively recent decision of this court, Loeb, have concluded that
the immunity created by section 831.4, subdivision (b) equally applies to
paved and unpaved pathways and trails. Despite this law, Haering asserts
these cases wrongly interpreted the statute and should be rejected because
the legislative history of the statute, along with that of section 831.2, show
the law was not intended to provide immunity for the paved walkway on
which she fell.
As the County argues, the plain language of section 831.4,
subdivision (b) refers to “any trail,” and, unlike subdivisions (a) and (c) of the
statute, contains no limitation to “unpaved road” or “unpaved trail.” As
Haering acknowledges, courts have repeatedly held “the nature of the trail’s
surface is irrelevant to questions of immunity” under section 831.4,
subdivision (b). (Armenio, supra, 28 Cal.App.4th at p. 418.) In the first of
these cases, Armenio, the court rejected the same argument Haering
advances here, that the statute “does not extend to paved trails.” (Armenio,
at p. 418.) In Armenio, the plaintiff was injured on a paved bicycle path. On
4 The County argues that we should reject Haering’s appeal because her
summary of the facts contains only a one-sided presentation of the relevant
evidence. As Haering points out, however, the County does not identify any
missing material information in Haering’s briefing. We decline to affirm the
judgment on this ground.
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appeal from summary judgment, the bicyclist argued that “if immunity
applied to both paved and unpaved trails, there would be no need for
section 831.4, subdivision (c), which specifically refers to paved trails, paths,
etc.” (Ibid.)
The First District rejected this assertion, explaining that
“subdivision (c) is not concerned with property that public entities own in fee,
but with easements granted to public entities specifically to provide access to
unimproved property.” (Armenio, supra, 28 Cal.App.4th at p. 418.) The court
held that “[u]nlike subdivision (a) of section 831.4, which refers specifically to
‘unpaved’ roads, and subdivision (c), which refers specifically to ‘paved’ trails,
paths, etc., subdivision (b) refers to ‘[a]ny’ trail. The logical inference of the
all-encompassing ‘any’ in subdivision (b), particularly in relationship to the
limiting adjectives in its sister subdivisions, is that the nature of the trail’s
surface is irrelevant to questions of immunity.” (Armenio, at p. 418.)
Several years later, in Farnham, the Second District reached the same
conclusion as Armenio. The Farnham court considered statutory construction
arguments similar to those advanced by Haering. (Farnham, supra, 68
Cal.App.4th at p. 1099.) In Farnham, a bicyclist was injured when he was
riding on a paved bike path. On appeal from a judgment on the pleadings,
the bicyclist argued, among other things, that the path was not subject to
recreational trail immunity under section 831.4, subdivision (b) because it
was paved. (Ibid.) Looking to the legislative history of the statute, the court
rejected this argument. Farnham explained, “[a]s originally enacted,
subdivision (b)’s application was limited to ‘[a]ny hiking, riding, fishing or
hunting trail.’ (Stats. 1963, ch. 1681, § 1, p. 3273.) [¶] The introductory
paragraph to section 831.4 was subsequently amended to include ‘a grantor of
a public easement’ as being entitled to immunity under the statute. (Stats.
10
1970, ch. 807, § 2, p. 1530.) The stated purpose was to encourage people to
grant public easements by giving liability immunity.” (Farnham, supra, 68
Cal.App.4th at pp. 1101–1102.) At the same time, “subdivision (b) was
amended from ‘[a]ny hiking, riding, fishing or hunting trail’ to ‘[a]ny trail
used for the above [subdivision (a)] purposes.’ (Stats. 1970, ch. 807, § 2,
p. 1530.)” (Farnham, at p. 1101.) Then, “in 1979, section 831.4,
subdivision (c) was added in order to encourage governmental entities to
accept easements for trails, etc., without fear of tort liability.” (Id. at
p. 1102.)
Farnham explained that while “[i]t is true that part of the legislative
history ... shows a concern with total immunity over only unpaved roads or
trails, and a more qualified immunity (as now expressed in section 831.4,
subdivision (c)) for paved trails,” the provision “went through a variety of
drafts as to subdivisions (b) and (c) before its final form. After considerable
input from attorneys, cities, and counties, the final draft gave total immunity
for any trail used for recreational access, and a more limited immunity to
paved trails, etc., on an easement that provides access to unimproved
property.” (Farnham, 68 Cal.App.4th at p. 1102.) As Farnham stated, at the
time it added subdivision (c) to the statute, “[t]he Legislature could have
easily chosen to make subdivision (b)’s ‘any trail’ subject to the same”
conditions as subdivision (c) “and opted not to do so.”5 (Ibid.) We agree with
this settled law that the immunity afforded by section 831.4, subdivision (b)
5 Farnham also noted that the California Supreme Court had recently
denied review of the same issue in Carroll (a slightly earlier case that also
followed Armenio), and that it was “up [to] the Legislature to determine if
there are public policy considerations that might justify something less than
full immunity, and, if so, whether section 831.4 should be amended.”
(Farnham, supra, 68 Cal.App.4th at p. 1103.)
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applies to both unpaved and paved trails, including the walkway through the
Animal Park at issue here.
To support her argument that these cases were wrongly decided,
Haering looks to the legislative comments of section 831.2, which was
enacted at the same time as the original version of section 831.4, and the
California Supreme Court’s decision in Milligan v. City of Laguna Beach
(1983) 34 Cal.3d 829 (Milligan). This authority does not persuade us that
subdivision (b) of section 831.4 has been incorrectly interpreted. Haering
argues that because the original language of section 831.4 only concerned
unpaved and unimproved roads and trails, the “Legislature did not and could
not intend to include such paved, multiuse trails in its definition of ‘trails’
under” the statute, nor “did it ever impliedly or explicitly do so in any
subsequent amendment to that section.”
At the time sections 831.2 and 831.4 were enacted as part of the Tort
Claims Act of 1963 (§§ 810–996.6) establishing certain governmental
immunity, the Legislature adopted formal legislative committee comments to
section 831.2 that reference section 831.4. Section 831.2, which has remained
unchanged since its enactment, states: “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 formal comments to
the provision state: “This section provides an absolute immunity from
liability for injuries resulting from a natural condition of any unimproved
public property. Thus, for example, under this section and Section 831.4, the
State has an absolute immunity from liability for injuries resulting from
natural conditions of a state park area where the only improvements are
recreational access roads (as defined in Section 831.4) and hiking, riding,
12
fishing and hunting trails. [¶] This section and Section 831.4 continue and
extend an existing policy adopted by the Legislature in former Government
Code Section 54002. It is desirable to permit the members of the public to
use public property in its natural condition and to provide trails for hikers
and riders and roads for campers into the primitive regions of the State. But
the burden and expense of putting such property in a safe condition and the
expense of defending claims for injuries would probably cause many public
entities to close such areas to public use. In view of the limited funds
available for the acquisition and improvement of property for recreational
purposes, it is not unreasonable to expect persons who voluntarily use
unimproved public property in its natural condition to assume the risk of
injuries arising therefrom as a part of the price to be paid for benefits
received.” (§ 831.2, Leg. Comm. Comments.) The legislative comments to
section 831.4, in turn, refer to the section 831.2 comments, and state that
section 831.4 “will provide, for example, an absolute immunity from liability
for injuries resulting from the condition of such roads as fire protection roads
in timbered areas and irrigation district maintenance roads.” (§ 831.4, Leg.
Comm. Comments.)
Based on this language, Haering contends that the Legislature
intended only to provide immunity to unpaved trails providing access to
recreational activities. The comments, however, do not limit the
governmental immunity created by these statutes. Rather, they provide an
explanation for the continuation and expansion of existing immunity created
by these provisions. That immunity was extended to encourage public
entities to provide access to areas that would otherwise be made inaccessible
because of liability concerns. (See Milligan, supra, 34 Cal.3d at p. 833 [“The
legislative policy underlying the immunity is clear. It is desirable to permit
13
public use of governmental property but governmental agencies might
prohibit such use if they were put to the expense of making the property safe,
responding to tort actions, and paying damages.”].) This policy does not
conflict with the plain language of the current statute as interpreted by
Armenio and later cases. (See Lungren v. Deukmejian (1988) 45 Cal.3d 727,
735 [“If the language is clear and unambiguous there is no need for
construction, nor is it necessary to resort to indicia of the intent of the
Legislature”].)
Milligan also provides no help to Haering. The case considered
whether the immunity created by section 831.2, not 831.4, was applicable to
nonusers of the government property at issue, specifically the owners of an
adjacent home that was damaged by trees fallen in a storm. (Milligan, supra,
34 Cal.3d at p. 831.) In deciding that the immunity did not apply in this
circumstance, the Supreme Court examined the legislative history of
section 831.2 to support its conclusion that the statute was not enacted to
protect the government from this type of liability. The court held that the
statute’s legislative comments—formerly adopted by the Senate Committee
on the Judiciary and the Assembly Committee on Ways and Means to explain
“the purpose and effect of the provisions to be enacted” by the Tort Claims
Act—made plain that the statute “has nothing to do with an injury sustained
by an adjacent landowner from a tree on government land.” (Milligan, at
pp. 831, 833.) Milligan’s holding, interpreting section 831.2 and applying it
to a set of facts entirely unrelated to this case, does not lead us to reject the
statutory interpretation of section 831.4 discussed above.
Haering also argues that a later-adopted statute within the Tort
Claims Act—section 831.7—supports her reading of section 831.4. The
County responds that Haering forfeited this argument by failing to raise it in
14
the trial court. We agree with the County that the argument was forfeited.
(See JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115
Cal.App.4th 168, 178 [“Appellate courts are loath to reverse a judgment on
grounds that the opposing party did not have an opportunity to argue and the
trial court did not have an opportunity to consider.”] (JRS Products).)
However, even if we reach this purely legal argument of statutory
interpretation, we are not persuaded by it.
Section 831.7 provides immunity to public entities for certain
enumerated hazardous activities. Haering argues that her position is
supported by a subdivision of section 831.7 that exempts from immunity
liability for injury that is “caused by the negligent failure of the public entity
or public employee to properly construct or maintain in good repair any
structure, recreational equipment or machinery, or substantial work of
improvement utilized in the hazardous recreational activity out of which the
damage or injury arose.” (§ 831.7, subd. (c)(1)(C).) She also asserts that
subdivision (b)(3) of section 831.7, enumerating certain hazardous activities
subject to the statute, shows that the Legislature intended section 831.4,
subdivision (b) to apply only to unpaved trails. She argues that because
section 831.7, subdivision (b)(3) excludes “riding a bicycle on paved pathways,
roadways, or sidewalks” from the definition of “mountain biking,” paved
trails are also exempt from liability under section 831.4, subdivision (b).
These arguments lack merit.
We agree with the County that section 831.7, which was enacted in
1983 to provide governmental immunity for hazardous recreational activities,
has no bearing on the meaning of the phrase “all trails” in section 831.4,
subdivision (b). The limitations on immunity in section 831.7 that Haering
cites are sensible. As the County points out, no one would argue that riding a
15
mountain bike on a paved trail or road is a hazardous recreational activity
subject to section 831.7’s immunity, but no similar rationale applies to the
trail immunity at issue in this case. (See, e.g., Loeb, supra, 43 Cal.App.5th at
p. 431 [“ ‘ “It is well-established that the [trail] immunity covers negligent
maintenance of a trail” ’ ”].) Likewise, the maintenance of a “substantial
work of improvement” for a hazardous recreational activity discussed in
section 831.7, subdivision (c)(1)(C), bears no relationship to the recreational
trail immunity created by section 831.4. Haering’s reliance on section 831.7
to support her interpretation of section 831.4 is misplaced.
B
There Are No Disputed Issues of Material Fact
Haering next argues that even if the recreational trail immunity
statute applies to the Animal Park’s paved walkway, disputed issues of
material fact remain that precluded the trial court from entering summary
judgment. Specifically, Haering asserts that a jury should have been given
the opportunity to determine if the walkway is a trail under section 831.4 and
whether the walkway was designed and used for a recreational purpose. The
County responds that no factual dispute exists as to whether the walkway is
a trail under the statute. We agree with the County.
As noted, courts primarily consider three factors to determine whether
a property owned or controlled by a public entity is covered by the
recreational trail immunity found in section 831.4, subdivision (b): “ ‘(1) the
accepted definitions of the property, (2) the purpose for which the property is
designed and used, and (3) the purpose of the immunity statute.’ ” (Loeb,
supra, 43 Cal.App.5th at p. 431.) Here, the undisputed facts concerning the
paved walkway in the Animal Park satisfy each factor.
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First, the accepted definition of the walkway is squarely within that of
a trail. “[T]he pathway constitutes a trail under accepted definitions because
it is a paved pathway through a park, and a ‘path,’ as Carroll, supra, 60
Cal.App.4th at p. 609, observed, is synonymous with a ‘trail.’ (See ibid.
[dictionary definition of a trail is ‘ “a marked or established path or
route”....’]; Treweek, supra, 85 Cal.App.4th at p. 230 [a trail ‘consist[s]
primarily of a path or track’]; compare Treweek, supra, at p. 230 [dictionary
and judicial definitions did not suggest that a [boat] ‘ramp’ was synonymous
with a ‘trail’].)” (Amberger-Warren, supra, 143 Cal.App.4th at p. 1079; see
also Montenegro v. City of Bradbury (2013) 215 Cal.App.4th 924, 931
(Montenegro) [“[S]ection 831.4 applies to any trail or path specifically put
aside and developed for recreational uses, without regard to its unnatural
condition or urban location, and have consistently defined paved,
multipurpose paths located in metropolitan areas as ‘recreational trails’ for
purposes of section 831.4, subdivision (b) immunity.”].)
Haering herself repeatedly describes the area as a walkway in the
Animal Park, but argues a walkway and a path are not the same. We discern
no meaningful difference between a path and walkway, and agree with the
County there is no factual dispute that the area at issue here is a trail for
recreational purposes.6 The undisputed evidence, in the form of McElroy’s
declaration, shows that the walkway is part of “a series of asphalt covered
access and recreational trails ... amongst the animals for use of the public.”
6 Haering also states that “absent a showing that the asphalt walkway in
this case was a ‘trail,’ i.e., a way through some kind of natural landscape
rather than a path or walkway, the immunity provisions of section 831.4 do
not apply.” However, the undisputed facts submitted in support of the
County’s motion for summary judgment establish that the path is set in the
natural landscape of the San Bernardino Mountains where the Animal Park
is located.
17
There is also no factual dispute that the second factor is satisfied
because the evidence conclusively established the walkway was designed for
recreational use. Haering argues that the Animal Park’s primary purpose is
not recreation for visitors to the park, but instead as a shelter for injured and
orphaned animals. She concedes, however, that McElroy’s testimony was
that “the Animal Park was designed and continued throughout the occupancy
at Moonridge Road to be a mountain park for the general public to observe
the animals amongst the native fauna and flora of the San Bernardino
Mountains.” Haering presented no evidence to dispute this fact in the trial
court. Despite this, Haering argues that “a jury could question the credibility
of that statement” and “infer that the design of the surroundings ... has more
to do with keeping things low maintenance than it has to do with making [the
park] interesting for visitors.”
We disagree. There is no question that the Animal Park was created to
provide visitors with recreational activity, i.e., viewing the area’s native
animals in their natural habitat. Indeed, Haering herself testified at her
deposition that she visited the Park that day to observe the animals. The fact
that the park had the dual purpose of providing care to animals does not
negate its recreational purpose. (See Montenegro, supra, 215 Cal.App.4th at
p. 932 [“The fact that a trail has a dual use—recreational and
nonrecreational—does not undermine section 831.4, subdivision (b)
immunity.”]; Loeb, supra, 43 Cal.App.5th at p. 434 [holding that the
pathway’s dual purpose of providing bathroom access did not negate its use
for recreational purposes]; Hartt v. County of Los Angeles (2011) 197
Cal.App.4th 1391, 1393, 1399–1400 [affirming summary judgment under
trail immunity where bicyclist died by colliding with service vehicle on a
“road which connects the upper and lower areas of [a] park” used for both
18
recreation and service vehicle access]; Burgueno, supra, 243 Cal.App.4th at
p. 1055 [trail immunity applied to path “accessed by university service
vehicles and emergency vehicles”].)
Haering also asserts that whether the walkway satisfied the third
factor, the purpose of the immunity statute, should have been put to a jury.
Specifically, Haering argues that several facts would support a finding that
the Animal Park was a commercial operation that does not fit within the
policy that animates the recreational trail immunity provided under
section 831.4, subdivision (b). In support of this argument, she points to the
fact that entrance into the Animal Park is not free; McElroy’s statement that
the operation “broke even in terms of revenues and costs;” and two provisions
in the lease between the County and the property’s owners, one requiring the
Big Bear Valley Recreation and Parks District to “maintain and repair” the
property “as is necessary to keep the [property] in a safe and orderly
condition” and another stating that the parties to the lease were each
“responsible for providing insurance coverage to protect its own interests and
exposures under [the] Lease.”7
With respect to the fact that the Animal Park charges an entrance fee,
we agree with the County that this does not undermine the trial court’s legal
conclusion that section 831.4 applies because the walkway provided access to
a recreational activity. The statute contains no limitation of the immunity
when the public entity charges an entrance fee. Further, this argument has
been rejected by at least one Court of Appeal in the context of section 831.2.
In Bartlett v. State of California (1988) 199 Cal.App.3d 392 (Bartlett), an ATV
7 Haering also points to the fact that the Animal Park was relocated
after the fall at issue here took place. We agree with the County that this
fact is irrelevant to the determination of whether the recreational trail
immunity statute applied at the time of Haering’s fall.
19
rider was injured on the sand dunes in Pismo Beach that were managed by
the State. (Id. at p. 395.) The Second District affirmed the trial court’s order
granting summary judgment in favor of the State, finding that the natural
conditions immunity of section 831.2 applied. (Ibid.)
The court rejected the ATV rider’s assertion that the collection of
entrance fees by the state created a triable issue of fact as to whether the
immunity applied: “Nothing in the language of the statute, its history, nor in
the case law suggests that this immunity is conditioned on open and free
access to the public property in question or is lost where the property
produces revenue for the State.” (Bartlett, supra, 199 Cal.App.3d at p. 398.)
Rather, the court found that “[a] rule that the State loses the natural
conditions immunity by charging users or admission fees would conflict with
the intent of the Legislature. The Legislature recognized that there are
‘limited funds available for the acquisition and improvement of property for
recreational purposes,’ and that the ‘burden and expense of putting such
property in a safe condition and the expense of defending claims for injuries
would probably cause many public entities to close such areas to public use.’ ”
(Ibid.)
Similarly here, the purpose of the recreational trail immunity found in
section 831.4—to encourage public recreation—is not upset by the Animal
Park’s collection of an entrance fee. As in Bartlett, charging an entrance fee
20
that allows the Animal Park to maintain its operation and public enjoyment
of the park is in harmony, not conflict, with the immunity statute’s purpose.8
In response to Haering’s argument that the provisions of the lease
between the County and the property owners raised triable issues of fact as
to whether the statute applies, the County asserts this argument was
forfeited because it was not raised in the trial court. We agree the arguments
are not cognizable on appeal because they were not raised below. (JRS
Products, supra, 115 Cal.App.4th at p. 178.) However, even if we were to
reach the issue, the provisions in the lease that Haering looks to do not
establish a disputed issue of fact for the jury’s consideration. The lease
provisions govern the relationship between the parties to the lease, and
8 Haering also cites Garcia v. American Golf Corp. (2017) 11 Cal.App.5th
532 (Garcia) to support her argument that generation of revenue by the
Animal Park creates a triable issue of material fact for the jury. In Garcia, a
child being pushed in a stroller on a trail adjacent to a golf course operated by
the City of Pasadena was injured by an errant golf ball. (Id. at p. 537.) The
mother of the child brought suit and the trial court granted summary
judgment to the City under the recreational trail immunity statute. In
reversing the decision, the Second District concluded that trail immunity was
not applicable to the dangerous condition created by the adjacent golf course.
(Id. at p. 535.) In limiting the immunity in this fashion, the court adopted a
“relatedness test” to analyze whether the dangerous condition (i.e., the golf
course) was sufficiently related to the trail to extend it immunity. (Id. at
p. 544.) In concluding the golf course was not sufficiently related, the court
looked to the characteristics of the course, including the fact that it was
commercially operated and revenue-generating for the City, and that the City
had taken significant steps to prevent such injuries in other areas of the
course by installing safety nets and placing trees in ways to protect nearby
development. (Id. at p. 545.)
Garcia involved an injury that was caused by a separate, adjacent
property and presents a far different scenario from that here, where the
injury was the result of the immunized trail itself. We do not agree with
Haering that Garcia creates a triable issue of fact as to whether the
immunity applies in this case.
21
Haering does not explain how the provisions could limit the governmental
immunity created by statute. As the County points out, the trail immunity
statute contains no language limiting the application of the immunity when
insurance is in effect.
Finally, Haering asserts that the fact that the property at issue is not
“in its ‘natural’ state further supports the conclusion that its walkway[]” is
not a trail for recreational access. She points to the existence of structures on
the property, fencing around its perimeter, animal enclosures, and the
existence of bathrooms and utilities on the property. This development does
not preclude the application of the recreational trail immunity statute.
Rather, “[S]ection 831.4 applies to any trail or path specifically put aside and
developed for recreational uses, without regard to its unnatural condition or
urban location.” (Montenegro, supra, 215 Cal.App.4th at p. 931; see also
Astenius v. State of California (2005) 126 Cal.App.4th 472, 476 [“When the
Legislature has intended to limit governmental immunity to unimproved
property, it has expressly said so. (See § 831.2 limiting immunity to injuries
arising from ‘a natural condition of any unimproved public property.’)
Section 831.4 contains no such limiting language and we decline to add it.”].)
In sum, Haering has not shown the existence of triable issues of
material fact as to whether the walkway is a trail to access a recreational
activity for purposes of section 831.4.
22
DISPOSITION
The judgment is affirmed. The costs of appeal are awarded to the
Respondents.
McCONNELL, P. J.
WE CONCUR:
HUFFMAN, J.
O’ROURKE, J.
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