Domingue v. Presley of Southern California , 243 Cal. Rptr. 312 ( 1988 )

Opinion

McCLOSKY, Acting P. J.

Appellant Nicholas Domingue appeals from summary judgment entered in favor of respondent Presley of Southern California in appellant’s suit for personal injury based upon premises liability and general negligence. Summary judgment was predicated on Civil Code section 846.

Appellant contends: “A. The trial court improperly determined Civil Code § 846 immunized defendant from liability to recreational user when injured on a construction project on defendant’s land. B. Defendant is liable to plaintiff for willful failure to guard or warn against a dangerous condition, use or structure on defendant’s land. C. Respondent/defendants [s/c] have not shown undisputed material facts entitling them to a summary judgment.”

Appellant, a minor, was injured in March 1985, when he rode his bicycle off a six-foot drop in a graded area of property belonging to respondent. Appellant alleged two causes of action, the first for negligence. He alleged in eifect that respondent was negligent in failing to guard, fence, take reasonable precautions or warn of the dangerous condition of the area, knowing that appellant and other children rode their bicycles on the site. In his second cause of action, appellant alleged that respondent “willfully or maliciously failed to guard or warn against a dangerous condition, use, structure, or activity . . . .” Respondent answered the complaint, raising as an affirmative defense that liability was barred by Civil Code section 846.

Respondent’s motion for summary judgment was granted on the grounds that Civil Code section 846, as interpreted in Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 706-708 [190 Cal.Rptr. 494, 660 P.2d 1168], provides that owners owe no duty of care to keep the premises safe for others for recreational purposes, and that appellant had failed to show willful misconduct. Summary judgment is a drastic procedure which should be used with caution to avoid its becoming a substitute for trial. (Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147 Cal.App.3d 309 [195 Cal.Rptr. 90].) On appeal, all intendments are in favor of the party who opposed the motion. (Slobojan v. Western Travelers Life Ins. Co. (1969) 70 Cal.2d 432, 437 [74 Cal.Rptr. 895, 450 P.2d 271].) Nevertheless, a summary judgment will not be reversed absent an abuse of the trial court’s discretion. (Rubio v. Swiridoff (1985) 165 Cal.App.3d 400, 403 [211 Cal.Rptr. 338].)

Respondent’s evidence in its motion for summary judgment, strictly construed (Sheffield v. Eli Lilly & Co., (1983) 144 Cal.App.3d 583, 611 [192 Cal.Rptr. 870]), showed that appellant entered the property without any express invitation from respondent to do so, that appellant paid no consideration for entry, that he entered for the purpose of riding his bicycle to his friend Curtis’s house and that the reason he rode through the dirt area where the accident occurred was “[b]ecause it’s a shorter way to get there, and we just go through the dirt” and that the owner had altered the property from its natural condition by grading it where the accident occurred. The site of appellant’s fall was an area which had house pads and streets graded in. No building structure on the lot in question or on the lots immediately adjacent to it had yet begun on the date of the accident.

Appellant’s evidence submitted in opposition to the motion, must be liberally construed. (Sheffield v. Eli Lilly & Co., supra, 144 Cal.App.3d at p. 611.) So construed, it clearly raises a triable issue of material fact because it shows that the only reason appellant was on respondent’s land at the time of the accident was that he was on his way to his friend Curtis’s house and “[b]ecause [this was] a shorter way to get there.” He so testified at pages 10 and 11 of his deposition attached to the declaration of Attorney Marvin B. Osband in support of the “Opposition to Defendant’s Motion For Summary Judgment [etc.].” The evidence showed that the grading at the property had resulted in construction of a dirt pad six feet high from which appellant, in the course of his trip across respondent’s property, “jumped” his bicycle and fell, causing him injury.¹ Improved streets had already been built in the area. It also showed that respondent’s building supervisor was in the area daily and inspected the accident site, which was neither fenced nor posted with warning signs, that appellant was never told to stay off the property by respondent, and that appellant and his friends had ridden their bicycles on the property more than 20 times before.

Section 846 of the Civil Code upon which the summary judgment in favor of defendant is predicated, provides that an owner “owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on such premises” except that this section does not limit liability “(a) for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity; or (b) for injury suffered in any case where permission to enter for the above purpose was granted for a consideration . . .; or (c) to any persons who are expressly invited ... to come upon the premises by the landowner.” Recreational purpose, as defined by Civil Code section 846, includes “snowmobiling, and all other types of vehicular riding, . . (Italics added.)

Attached as exhibit “A” to respondent counsel’s declaration in support of respondent’s “Motion For Summary Judgment/Or Alternatively For Adjudication of Issues Without Substantial Controversy” are copies of pages 11 through 14 of appellant’s deposition. These are attached for the supposed purpose of showing that the minor appellant was using the respondent’s land for a recreational use at the time of the accident. What those pages 11 though 14 actually show in that regard, however, is that on 20 or more occasions prior to the occasion in question plaintiff had used the land in question for recreational purposes.

It is only by reading page 10, line 19 through page 11, line 1 of that deposition, which pages were attached as an exhibit to the declaration of Attorney Marvin B. Osband’s declaration in support of the “Opposition to Defendant’s Motion for Summary Judgment,” that we read the crucial lines of the minor appellant’s deposition which show that he was using respondent’s land on the occasion of the accident, not for recreational purposes, but as a shortcut to get to his friend Curtis’s house. Those lines read as follows:

“Q. Now, you said you were on your way to your friend Curtis’ house.

“Could you have gotten to Curtis’ house using paved streets?

“A. Yes.

“Q. Why did you go through the dirt area then?

“A. Because it’s a shorter way to get there, and we just go through the dirt.”

It is thus apparent that there was at the very least a triable issue of fact as to whether the land was being used for a recreational use at the time of the accident. This alone precluded the possibility of properly granting of a motion for summary judgment. The mere fact that the minor appellant was riding his bicycle to his friend’s house does not make his trip across respondent’s land on the occasion of the accident a recreational use. In Gerkin v. Santa Clara Valley Water Dist. (1979) 95 Cal.App.3d 1022 [157 Cal.Rptr. 612], disapproved on other grounds in Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 707 [190 Cal.Rptr. 494, 660 P.2d 1168], plaintiff fell from a two-plank bridge while either walking or walking with her bicycle across it. Summary judgment was granted in favor of defendant on the ground that plaintiff’s activity was “hiking.” Held: reversed; the term refers to recreational hiking in its commonly understood meaning, i.e., taking a long walk for pleasure or exercise. (Id., at p. 1027.) (See 4 Witkin, Summary of Cal. Law (8th ed. 1984 Supp.) Torts, § 585, p. 375.) “In 1978, the Legislature left no doubt that the immunity provided for in section 846 was aimed exclusively at sports or recreational activities by amending the statute to limit an owner’s duty of due care to render the premises safe ‘for any recreational purpose.’ (Stats. 1978, ch. 86, § 1.) ‘Recreational purpose’ is thereafter defined as including those activities which were enumerated under the old section as well as a number of newly added ones.” (95 Cal.App.3d at p. 1026.)

In view of the language of Civil Code section 846 we first note that not all vehicular or bicycle riding is recreational in nature. A truck driver delivering a load of lumber or plumbing fixtures to a lot in a vehicle would certainly not be engaged in a recreational use of that land merely because he was making a vehicular use of it at the time. A Western Union messenger delivering a telegram on a bicycle would not be making a recreational use of the land to which he or she delivered the telegram. The landowner would certainly not be immune from a claim for injuries by that truckdriver or that cyclist by virtue of the provisions of Civil Code section 846.

Second, “a purely literal interpretation of any part of a statute will not prevail over the purpose of the legislation. [Citation.]” (95 Cal.App.3d at p. 1027.) That purpose is to encourage landowners to keep their property open to the public for recreational activities by limiting their liability for injuries sustained in the course of those activities. (Id., at p. 1026.) The land involved in this case had quite clearly been withdrawn from recreational use by the activities of the developer on it.

The trial court thus abused its discretion in granting the motion for summary judgment.

Even were we to assume arguendo that appellant was on respondent’s land for a recreational purpose, the result we reach would be the same.

Were we to improperly ignore the intent of the Legislature and construe Civil Code section 846 literally, and were we to assume appellant’s use of the land at the time of the accident was recreational, liability based on negligence would be precluded. Civil Code section 846, however, was enacted to encourage property owners “to allow the general public to recreate free of charge on privately owned property.” (Parish v. Lloyd (1978) 82 Cal.App.3d 785, 787 [147 Cal.Rptr. 431].) A developer who grades house pads and streets on its privately owned land does not do so to enable the public to use that land for recreational purposes but rather for a different proper purpose, tract development and sale. Free recreational use by the public during such development would interfere with that developer’s purpose and use of its private property and is consequently not encouraged.

Civil Code section 846 may not be construed without considering the intent of the Legislature in enacting it.² The Legislature obviously did not intend to allow or encourage the general public to recreate free of charge on all privately owned property of every kind, nature and state of development. While its application is not limited to land in its natural condition (Delta Farms Reclamation Dist. v. Superior Court, supra, 33 Cal.3d at p. 706), there are obvious limits to the application of the section.

An exception has been recognized by the courts for land not suitable for, or intended for recreational use. In Potts v. Halsted Financial Corp. (1983) 142 Cal.App.3d 727, 730 [191 Cal.Rptr. 160], Division Five of the Second District Court of Appeal held that application of the statute to preclude liability for negligence where the injury was caused by a fall from the roof of a building under construction on beachfront property in a residential area would not promote the statute’s purpose. Similarly, in Paige v. North Oaks Partners (1982) 134 Cal.App.3d 860, 865 [184 Cal.Rptr. 867], the same division of this district held that the statute did not preclude liability where a child was injured jumping his bicycle over an open trench in a temporary construction project in an urban shopping center. The Paige court stated: “Here, although plaintiff’s purpose was undoubtedly recreational, the nature of the property in question shows that it is not within the intent of section 846. We find nothing in the legislative history to suggest that the Legislature intended to relieve all landowners of liability to trespassing children, whose activities usually are recreational. The fact that the words of section 846 could constitutionally be interpreted literally so as to apply to this case [citation], does not mean that they should be so interpreted.” (Id., at p. 864.)

In Paige v. North Oaks Partners, supra, the court discussed the legislative intent in the following terms: “In attempting to provide access for the public to open spaces for recreational use, the Legislature could not have intended to encourage owners and building contractors to allow children to play on their temporary construction projects.” (134 Cal.App.3d at p. 863.) Appellant’s evidence in this case showed that he was injured playing on respondent’s construction project. Respondent points to three factual differences between this case and Paige v. North Oaks Partners, supra. We do not believe that they require a different outcome.

The first difference is that the minor here was injured jumping his bicycle from a six-foot pad rather than over an open trench as in Paige v. North Oaks Partners, supra. There is no suggestion in Paige v. North Oaks Partners, supra, that the trench was not apparent to the minor, and we fail to see how a trench is either more attractive or more dangerous to youthful bicyclists than a six-foot high pad of dirt.

The second difference is that arguably no construction had taken place at the site in the present case from 1982 to the March 1985 accident date when grading was completed, whereas in Paige v. North Oaks Partners, supra, the construction sites were temporary ones. We first observe that the record by no means supports that supposition although it does establish that no construction had taken place in the recent past on the lot where the accident occurred or on the lots immediately adjacent to it. Moreover, we do not believe that the length of time since construction work was done at the site controls the owner’s or contractor’s duties regarding safety. An owner or contractor who begins construction and then leaves the site while developing other sites cannot complain if he is required to take the reasonable steps contemplated by consideration of the factors set forth in Restatement Second of Torts, section 339 and O'Keefe v. South End Rowing Club (1966) 64 Cal.2d 729, 740-741³ [51 Cal.Rptr. 534, 414 P.2d 830, 16 A.L.R.3d 1] for the safety of minors who enter the area. While the extent to which equipment and structures are present at the site might affect the steps which an owner or contractor would be required to take in order to meet his duty of care (see Pote v. Halsted Financial Corp., supra, 142 Cal.App.3d at pp. 729-730), we do not believe that their absence precludes liability. We further observe that respondent had its building supervisor on the accident site everyday so respondent cannot successfuly maintain that nothing had gone on there in the last two or three years.

The third difference pointed to by respondent is that the fall in the present case took place in a vacant graded lot in a residential neighborhood which had “recently” been pastureland, whereas the fall in Paige v. North Oaks Partners, supra, 134 Cal.App.3d 860, took place near the loading dock of a market in an urban shopping center. We point out that according to respondent’s other allegations there were no residences present and that the accident site had been in its current state for two or three years. A construction site in a coastal residential area was the site of the fall in Potts v. Halsted Financial Corp., supra. The court there stated, “While the beaches themselves indeed are suitable for recreational uses, the same cannot be said of the roofs of private homes in the process of construction, whether or not they could be scaled to observe some pretty sight.” (142 Cal.App.3d at p. 732.) The court in Paige v. North Oaks Partners, supra, stated that it was not adopting an “urban versus rural land” distinction. (134 Cal.App.3d at p. 865.) We do not believe that the nature of the area in which the fall occurred precludes liability. We agree with decisions of Division Five of the Second District in the Paige and Potts cases.

We do not believe that our opinion in Nazar v. Rodeffer (1986) 184 Cal.App.3d 546 [229 Cal.Rptr. 209] (summary judgment for landowner reversed for other reasons) is apposite. The land involved in Nazar was a “vacant lot unimproved with the exception of a concrete drainage ditch. [It was not actively in the process of development.] The accident occurred when plaintiff drove his motorcycle into the ditch which traversed the property and which was obscured by weeds and other vegetation.” (Id., at p. 550.) In that case there was “no contention that section 846 does not immunize defendants [landowners] from their ordinary negligence.” (Id., at p. 551.)

As distinguished from Nazar the land involved in the case at bench is developed land with the house pads and the surrounding streets in the development already graded. The building supervisor was at the site on a daily basis. There was nothing missing from this developed lot. It lacked only a dwelling house and finish landscaping to be a finished private home. It is fanciful to call this undeveloped land. It is the moving party’s burden in this case to provide evidence of the defense they are attempting to establish. Their evidence establishes that this is a construction site where the land has been developed preparatory to erection of houses. It does not establish as a matter of law that this is a recreational land. In addition to the question of for what purpose appellant was on the accident site there is, at the very least, a triable issue of fact as to whether this site is an active construction site, thus land withdrawn from recreational use. The fact that children had used this land in the past, and that the owner had not yet fenced it, does not mean that it was still recreational land at the time of appellant’s accident. Nothing, however, in this case serves the public policy behind Civil Code section 846 “ ‘to afford these property owners a modicum of protection from tort liability [to] encourage such owners to keep their lands in a natural, open and environmentally wholesome state.’ ” (Paige v. North Oaks Partners, supra, 134 Cal.App.3d at p. 865.) At the time of the accident this land could by no stretch of the imagination be considered recreational land, nor was it a project that was graded and completed or then abandoned to return to nature. It was developed land. As noted in Potts, the Legislature could not have intended the Civil Code section 846 immunity to apply to such a property: “A grant of immunity would merely encourage the negligent maintenance of construction sites, without, however, achieving the specific public benefit the Legislature envisioned.” (Potts v. Halsted Financial Corp., supra, 142 Cal.App.3d at p. 730.) This case far more clearly fits that category than the category of recreational land, as the respondents have attempted to do. It is highly developed land which just did not yet have a house built on it. The land had plainly been withdrawn from public recreational use.

We therefore hold that the trial court abused its discretion in granting respondent’s motion for summary judgment. (Code Civ. Proc., § 437c, subd. (c).) Our disposition of the foregoing issues makes it unnecessary for us to reach the issue of willful misconduct. (See Residents of Beverly Glen, Inc. v. City of Los Angeles (1973) 34 Cal.App.3d 117, 127 [109 Cal.Rptr. 724].)

The judgment is reversed. Appellant to recover his costs on appeal.

Rothman, J.,^* concurred.

1 Contrary to the statement of dissent [dis. opn., p. 1073] that “plaintiff and another friend rode across a field on their bicycles, went down a 30-foot hill in order to gain momentum, ‘lifted off a ‘little hill’ and deliberately jumped over a 6-foot drop formed by the grading of a lot” (italics added) there is nothing in the record on appeal to show that plaintiff went down the 30-foot hill “in order to gain momentum.” To the contrary, the only evidence is that he took the route he did “[b]ecause [this route] was a shorter way to get [to Curtis’s house],” the little hill and the six-foot hill were one and the same hill. The only reference in the record on appeal to the 30-foot hill or doing anything about gaining momentum is in the following cross-examination of the minor plaintiff in his deposition at page 24, line 9 through 17:

“Q. Now, when you said 30 feet, you meant the hill that you came down?

“A. Yes.

“Q. So that gave you the momentum? It gave you the speed?

“A. Yes.

“Q. Then, when you came to the little hill, you could actually lift off and jump?

“A. Yes.”

Appellant’s evidence on a motion for summary judgment must be liberally construed and that of the moving party must be strictly construed. After quoting the rule the dissent ignores it.

But even were we to construe the evidence presented by respondent on the cross-examination of the minor plaintiff the most we would have would be a conflict in the evidence as to a material issue of fact, which in itself would preclude summary judgment.

2 “ ‘The most fundamental rule of statutory construction is that “the court should ascertain the intent of the Legislature so as to effectuate the purpose of the law.” (Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640, 645 [335 P.2d 672]; California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 698 [170 Cal.Rptr. 817, 621 P.2d 856]; Moyer v. Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230 [110 Cal.Rptr. 144, 514 P.2d 1224].). . . The provision must be given a reasonable and common sense interpretation consistent with the apparent purpose and intention of the lawmakers, practical rather than technical in nature, and which, when applied, will result in wise policy rather than mischief or absurdity. (United Business Com. v. City of San Diego (1979) 91 Cal.App.3d 156, 170 [154 Cal.Rptr. 263]; City of Contra Mesa v. McKenzie (1973) 30 Cal.App.3d 763, 770 [106 Cal.Rptr. 569].) “ ‘The court should take into account matters such as context, the object in view, the evils to be remedied, the history of the times and of legislation upon the same subject, public policy, and contemporaneous construction.’ ” (Cossack v. City of Los Angeles (1974) 11 Cal.3d 726, 733 [114 Cal.Rptr. 460, 523 P.2d 260], quoting Alford v. Pierno (1972) 27 Cal.App.3d 682, 688 [104 Cal.Rptr. 110]; United Business Com. v. City of San Diego, supra, at p. 170.)’ Honey Springs Homeowners Assn. v. Board of Supervisors (1984) 157 Cal.App.3d 1122, 1136, fn. 11 [203 Cal.Rptr. 886].)” (Fierro v. State Bd. of Control (1987) 191 Cal.App.3d 735, 738-739 [236 Cal.Rptr. 516], fn. 2.)

3 “In a group of decisions rendered in 1958-1959 the rule set forth in section 339 of the first Restatement of Torts was adopted as the law of this state with respect to the liability of a possessor of land for the death or injury of trespassing children. (King v. Lennen (1959) 53 Cal.2d 340, 343 [1 Cal.Rptr. 665, 348 P.2d 98]; Garcia v. Soogian (1959) 52 Cal.2d 107, 110 [338 P.2d 433]; Courtell v. McEachen (1959) 51 Cal.2d 448, 457-458 [334 P.2d 870]; Reynolds v. Willson (1958) supra, 51 Cal.2d 94, 98.) Since the date of those decisions, however, the Restatement Second of Torts has been promulgated. Section 339 of the new Restatement is based largely on its predecessor, but makes several changes in wording. . . . No reason appears to cling to former section 339, and the new wording of the section constitutes a worthwhile improvement in the formulation of this doctrine.

“New section 339 declares: ‘A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if (a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and (b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.’

“As comment b to section 339 emphasizes, this doctrine imposes on the possessor only ‘a limited obligation to the child, falling short of a duty to prevent all foreseeable harm to him, but requiring reasonable care as to those conditions against which he may be expected to be unable to protect himself.’ (Accord, Garcia v. Soogian (1959) supra, 52 Cal.2d 107, 112.) Whether or not such an obligation or duty should be imposed, moreover, ‘depends upon a number of variable factors. The question of liability must be decided in the light of all the circumstances and not by arbitrarily placing cases in rigid categories on the basis of the type of condition involved without giving due consideration to the effect of all the factors in a particular situation.’ (Id. at p. 110 of 52 Cal.2d.)” (O’Keefe v. South End Rowing Club, supra, 64 Cal.2d at pp. 740-741.)

* Assigned by the Chairperson of the Judicial Council.