Johnson v. Sunshine Min. Co., Inc. ( 1984 )

BAKES, Justice.

This case presents questions of the applicability and the constitutionality of I.C. § 36-1604 which grants a limitation on a landowner’s liability to gratuitous recreational users of his property. Summary judgment was granted to defendant Sunshine Mining Company on the record which consists of the pleadings and affidavits. Viewed most favorably to the plaintiffs, the record in this case presents the following facts.

In 1946-47, Sunshine Mining Company constructed a built-up dike near the border of a section of its property, known as a “stull yard.” The yard is used for timber preparation and a staging area to the mine. The purpose of the dike was to control flooding of the nearby Big Creek, although a portion of a fork in the dike, in the northwest corner of the stull yard, was once used for unloading logging trucks. This portion of the dike had not been used by Sunshine since the early 1960’s. Several affiants testified of playing and riding motorcycles in the stull yard and on the dike from 1962 to 1980. According to the affidavits, Sunshine’s employees were aware of the recreational use of Sunshine’s property and did not ask the affiants to leave. On one occasion in 1972 an employee of Sunshine told one affiant that he could play and ride a motorcycle in the stull yard.¹ Sunshine never received any consideration for the recreational use of the stull yard.

In the fall of 1979, Sunshine excavated some of the fill material from the portion of the dike on the fork which had once been used for unloading logging trucks. The fill material contained sufficient mineralization to merit mixing and processing it with other ore. The excavation process was halted in the winter and was not resumed in the spring of 1980 because of a strike by Sunshine’s employees. The excavation left a ravine in the dike approximately fifteen feet deep and twenty-five feet to the other side.

On May 26, 1980, James Johnson was visited by a friend sporting a new three-wheel cycle. Johnson, riding his own motorcycle, accompanied the friend in trying out the new cycle. The two entered the stull yard on the north side, rode along the dike, and turned onto the fork of the dike heading toward the excavation. Johnson had previously ridden this route several times. Johnson was in the lead, traveling twenty to thirty miles per hour. Some brush and a slight rise in the dike obscured the view of the ravine until approximately eight to ten feet from the edge. Johnson fell into the ravine with his motorcycle, receiving injuries which caused his death several months later.

Johnson’s estate and heirs, plaintiff appellants, sued Sunshine for wrongful death. The district court granted summary judgment to Sunshine, ruling that I.C. § 36-1604 was constitutional, and based upon it there was no duty of care on the part of Sunshine either to warn of or refrain from creating a dangerous condition on its property. On appeal, Johnsons argue that I.C. § 36-1604 is inapplicable to the facts, and further that it is unconstitutional.

Appellants first argue that I.C. § 36-1604 does not apply to these facts. The statute provides in part:

36-1604. Limitation of liability of landowner. — ...

(c) Owner Exempt from Warning. An owner of land owes no duty of care to keep the premises safe for entry by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.”

There is no dispute that the dike is “land” or that Sunshine is the “owner” within the statute’s definitions. Appellants contend that motorcycling is not within the definition of “recreational purposes” as it was defined at the time of the accident:

36-1604. Limitation of liability of landowner. — ...

“(b) Definitions. As used in this section:

“3. ‘Recreational Purposes’ includes, but is not limited to, any of the following or any combination thereof: Hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, winter sports, and viewing or enjoying historical, archeological, scenic, or scientific sites, when done without charge of the owner.”

The statutory language employed by the legislature, i.e., “includes, but is not limited to,” makes it quite clear that the list was not intended to be exhaustive. Motorcycling for pleasure is sufficiently similar to the activities listed to be included. The uncontradicted affidavit of Johnson’s companion states, “On the date of James Johnson’s accident, May 26, 1980, Mr. Johnson and I were pleasure riding our cycles for recreational purposes only____ Neither Mr. Johnson or I paid any consideration to anyone for the right to ride our cycles ____” We conclude that Johnson’s activities were “recreational purposes” within the meaning of the statute.

Appellants next argue that the statute is ambiguous, and that it should be construed as applying only to “passive” negligence and not “active” negligence, such as Sunshine’s act of creating the cut in the dike. We find no ambiguity in the statute, nor any basis for distinguishing between so-called “active” and “passive” negligence. The statute specifically provides that “[a]n owner of land owes no duty of care to keep the premises safe for entry by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.” The statute, after first stating that the owner owes no duty of care to a person entering for recreational purposes, then refers to both use and activity, neither of which could exist without the owner taking some affirmative or active steps. Accordingly, there is no basis for arguing that the statute distinguishes between active or passive conduct.²

Appellants next contend that I.C. § 36-1604 violates the equal protection clause of the fourteenth amendment to the United States Constitution and analogous provisions in the Idaho Constitution because it creates two classes of persons, non-paying recreational users of another’s land and all other persons using the land of another.³

An equal protection analysis first requires a determination of the standard of review. Idaho recognizes three possible standards of review, (1) “strict scrutiny,” (2) “means-focus,” and (3) the “rational basis” tests. E.g. Leliefeld v. Johnson, 104 Idaho 357, 659 P.2d 111 (1983); Twin Falls Clinic & Hospital Bldg. Corp. v. Hamill, 103 Idaho 19, 644 P.2d 341 (1982); Jones v. State Board of Medicine, 97 Idaho 859, 555 P.2d 399 (1976). The classification in this case is not based on a “suspect” classification such as race or religion, nor does it involve a “fundamental right” which is expressly guaranteed or within the penumbra of the Constitution, i.e., freedom of speech, freedom of religion, freedom of movement, right to privacy, etc. Accordingly, the “strict scrutiny” standard is inapplicable.⁴

The “means-focus” test is applicable only if

“the discriminatory character of a challenged statutory classification is apparent on its face and where there is also a patent indication of a lack of relationship between the classification and the declared purpose of the statute____” Leliefeld v. Johnson, 104 Idaho at 373, 659 P.2d at 127.

There is no patent indication of a lack of relationship between the classification and the declared purpose. Therefore, the means-focus test is inapplicable. Leliefeld v. Johnson, supra.

The appropriate test to review a statute such as this is the rational basis test, which requires only that the statute “advances legitimate legislative goals in a rational fashion.” Leliefeld v. Johnson, 104 Idaho at 374, 659 P.2d at 128. The encouragement of recreation enhances the physical well-being of Idaho’s people, has a positive effect on Idaho’s economy, and is a legitimate legislative goal. The legislature has stated in I.C. § 36-1604(a) that “the purpose of this section is to encourage owners of land to make private land and water areas available to the public without charge for recreational purposes by limiting their liability toward persons entering thereon for such purposes.” It is rational for the legislature to conclude that a limit on the landowner’s liability exposure to non-paying recreational users has an influence on that landowner’s decision not to exclude recreational users from his land. Subsection (d) of the statute invites that result by providing that:

“36-1604. Limitation of liability of landowner. — ...

“(d) Owner Assumes No liability. An owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby: “1. Extend any assurance that the premises are safe for any purpose.

“2. Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owned.

“3. Assume responsibility for or incur liability for any injury to person or property caused by an act of omission of such persons.”

The recent opinion of the United States Supreme Court in Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 101 S.Ct. 715, 66 L.Ed.2d 659 (1981), provides the current expression of the rational basis test. That case involved the question of whether Minnesota’s statute prohibiting the sale of milk in plastic containers violated the equal protection clause of the fourteenth amendment.- Justice Brennan, writing for a nearly unanimous court, stated:

“But States are not required to convince the courts of the correctness of their legislative judgments. Rather, ‘those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.’____

“Although parties challenging legislation under the Equal Protection Clause may introduce evidence supporting their claim that it is irrational, [citing cases] they cannot prevail so long as ‘it is evident from all the considerations presented to [the legislature], and those of which we may take judicial notice, that the question is at least debatable.’ Id., at 154, 58 S.Ct., at 784. Where there was evidence before the legislature reasonably supporting the classification, litigants may not procure invalidation of the legislation merely by tendering evidence in court that the legislature was mistaken.” 449 U.S. at 464, 101 S.Ct. at 724.⁵

Applying this recent expression of the rational basis standard, we cannot say that the stated legislative determination that the limitation of liability will “encourage owners of land to make private land and water areas available to the public without charge for recreational purposes,” is an irrational legislative judgment. Accordingly, the statute survives the rational basis test.

Finally, appellant argues that “by granting immunity without regard to intent, I.C. § 36-1604 is arbitrary and unreasonable and denies appellants their federal and state constitutional guarantees of due process of law.” Appellants assert that, of the forty states which have similar recreational use statutes, all but Idaho and Ohio exclude from the immunity granted by the statute conduct by the landowner which reflects an intent to injure the trespasser. That was the common law rule in Idaho prior to the enactment of I.C. § 36-1604. Huyck v. Hecla Mining Co., 101 Idaho 299, 612 P.2d 142 (1980) (“the duty of the defendants, as owners or tenants, was to refrain from willful or wanton acts which might cause injuries [to a trespasser].”). However, we need not decide whether the Idaho statute exempts acts of a landowner which reflect an intent to injure a trespasser, as argued by appellants, and whether a lack of such an exemption in the statute would be an unconstitutional violation of due process. The activities of the defendant in excavating the ore from the dike for processing in its smelter does not rise to that level. Huyck v. Hecla Mining Co., supra. Accordingly, we take no position at this time on the issue of whether or not I.C. § 36-1604 would absolve a landowner of liability for willful or wanton injury to a trespasser. On the facts of this case, I.C. § 36-1604 advances legitimate legislative goals in a rational fashion and is therefore constitutional.

Affirmed. Costs to respondents.

DONALDSON, C.J., and McFADDEN, J. pro tem., concur.

1 . Plaintiffs offered other affidavits for the purpose of showing consent on other occasions. However, these affidavits were not based on "personal knowledge” as required by I.R.C.P. 56(e). Rather, they were based on what the affiant "had been told" by parties other than Sunshine. See also Tristate National Bank v. Western Gateway Storage Co., 92 Idaho 543, 447 P.2d 409 (1968).

2 . The only case cited to us which makes a distinction between "active” and "passive” negligence involved a common law action for negligence brought by a licensee. See LePoidevin v. Wilson, 111 Wis.2d 116, 330 N.W.2d 555 (1983). Even if we assume that Johnson had implied consent to enter the land, I.C. § 36-1604(d)(2) provides that the legal status of "licensee” is not thereby conferred upon him.

"36-1604. Limitation of liability of landowner. — ...

"(d) Owner Assumes No Liability. An owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby:

"(2) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed.”

3 . We will discuss the constitutional claim, even though it is questionable whether holding the statute to be unconstitutional would change the result in this case in view of our recent similar motorcycle case of Huyck v. Hecla Mining Co., 101 Idaho 299, 612 P.2d 142 (1980). In Huyck, the plaintiff, who was traveling on a private mining road which he had traveled on many times before on his motorcycle, was injured when he failed to see a cable and reflector which had been stretched across the private road by the owner. His failure to observe the cable was allegedly due to a slight rise in the road. This Court affirmed a summary judgment granted by the trial court stating that Huyck was a trespasser to whom a landowner owed no duty other than to "refrain from willful or wanton acts which might cause injuries.” Huyck v. Hecla Mining Co., supra at 301, 612 P.2d 142.

4 .Art. 1, § 18, of the Idaho Constitution which states, "[A] speedy remedy [shall be] afforded for every injury of person, property or character,” does not guarantee the common law rights which were in effect at the time the Constitution was adopted, as "fundamental rights." To hold otherwise

"would be to hold that the common law as of 1890 governs the health, welfare and safety of the citizens of this state and is unalterable without constitutional amendment. Nothing in Art. 1, § 18, either explicitly or implicitly prohibits legislative modification of common law actions. Art. 1, § 18, contains no reference whatsoever to the common law. The only adoption of the common law in this jurisdiction is found in Art. XXI, § 2, of the state constitution and I.C. § 73-116. Those provisions clearly contemplate the inherent power of the legislature to modify the common law with few exceptions. See, State v. McCoy, 94 Idaho 236, 486 P.2d 247 (1971) (dictum )." Jones v. State Board of Medicine, 97 Idaho at 864, 555 P.2d at 404.

5 . At oral argument it was suggested that the "reasonable" or "rational” element of the rational basis test might require that the rationality of the legislative decision be "fair and substantial,” because of the decision in Packard v. Joint School Dist. No. 171, 104 Idaho 604, 661 P.2d 770 (Ct.App.1983). However, the fair and substantial requirement is an element of the “means-focus" test, not the rational basis test.