HT State Travel & Bus Co. v. City of Page, Arizona CA2/5

Filed 3/17/23 HT State Travel & Bus Co. v. City of Page, Arizona CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
HT STATE TRAVEL & BUS B313590
COMPANY, INC.,
(Los Angeles County
Cross-complainant and Super. Ct. No. BC720628)
Appellant,
v.
CITY OF PAGE, ARIZONA,
Cross-defendant and
Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Gloria L. White-Brown, Judge. Affirmed.
Heath & Yuen, Stephen B. Heath, Steven W. Yuen and
Josh P. Davis for Cross-complainant and Appellant.
Freeman Mathis & Gary, Marc J. Shrake, Zachariah E.
Moura and Christian E. Foy Nagy for Cross-defendant and
Respondent.
Cross-complainant and appellant HT State Travel & Bus
Company, Inc., appeals from a summary judgment in favor of
cross-defendant and respondent City of Page, Arizona, in this
action concerning recreational immunity under Arizona Revised
Statutes section 33-1551.1 Section 33-1551 provides immunity to
premises owners from negligence claims by recreational users.
On appeal, HT contends: (1) the definition of “premises” under
the recreational immunity statute does not include a parking lot;
and (2) triable issues of material fact existed as to whether the
City was liable for gross negligence. The City contends its
evidentiary objections, which the trial court declined to rule on,
were not waived and should have been sustained. We conclude
recreational immunity under section 33-1551 applied to the
parking lot in this case. The City’s evidentiary objections were
not waived, and in particular, the City’s hearsay objection to an
online news article submitted by HT must be sustained. The
trial court properly granted summary judgment because there
was no admissible evidence of gross negligence. Therefore, we
affirm.
1 The parties agree Arizona law governs the City’s liability
for injuries inflicted in Arizona, as was applied by the trial court.
No issue has been raised on appeal concerning the choice of
forum or the application of Arizona law. Therefore, we also apply
Arizona law. All further statutory references are to the Arizona
Revised Statutes, unless otherwise stated.
2
FACTS AND PROCEDURAL BACKGROUND
Event and Allegations of Pleadings
In May 2018, Huanxiao Wu and her family were with a
tour group to visit Horseshoe Bend within the Glen Canyon
National Park in Arizona. A bus owned by HT struck and killed
Wu while she was on an unpaved parking lot owned by the City
adjacent to Horseshoe Bend.
On September 5, 2018, Tianqiu Peng, individually and on
behalf of Wu’s estate, Minyi Peng, Pei Weng, Zhang Wu, and
Feng Xia Lu (plaintiffs) filed a wrongful death action against HT
and the bus driver. On June 19, 2019, HT filed a cross-complaint
against the United States of America and Roe defendants for
equitable indemnity, contribution, and declaratory relief. HT
filed an amendment to the cross-complaint substituting the City
for a Roe defendant.
Motion for Summary Judgment and Supporting Evidence
On May 12, 2020, the City filed a motion for summary
judgment of the cross-complaint on the ground that recreational
immunity applied under section 33-1551, because the accident
location was a “premises” covered under the statute and the
plaintiffs were “recreational users.” In addition, the City argued
that HT had not alleged and could not show the City was liable
for gross negligence.
The City submitted two declarations from Kyle
Christiansen, who had been the City’s director of Public Works
for the previous three and one-half years, and who was
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responsible for evaluating safety issues, traffic flow, and
maintenance in the location of the accident. Historical satellite
photos showed that for more than 15 years cars have parked in
the area of the accident. The location has parking spots
demarcated by concrete blocks, as well as designated bus loading
and unloading zones for tour companies to use. No admission or
parking fees are charged to Horseshoe Bend visitors to enter or
use the parking area, and cars and buses historically used the
parking lot in an orderly fashion. He had no knowledge of, and
had never heard any report of, any vehicle accident involving
pedestrians at the accident location before the present case. He
also had no knowledge of any personal injury involving a vehicle
or any reports of unsafe conditions at the accident location.
The City provided deposition testimony of two police
officers as well. Sergeant Cody Miller stated that in 15 years of
service as an officer for the City, he had never received a report of
any incident at the location of the accident in which pedestrians
were put in danger. Detective Terry Tereick stated that in five
years of service with the Page Police Department, he had never
been to the location of the accident for any other traffic-collision
incident.
Opposition to Summary Judgment and Supporting
Evidence
HT opposed the motion for summary judgment on the
ground that the recreational immunity statute did not apply, or if
it did apply, the City failed to show the exception for gross
negligence did not apply. HT asserted that a parking lot was not
included in the definition of “premises” covered by the
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recreational immunity statute and the accident did not occur on
premises used by a “recreational user.” In addition, HT argued
the City was grossly negligent, because the City was aware of the
dangerous condition for years as a result of failing to comply with
design elements mandated in the City’s zoning code.
HT submitted the declaration of John Diehl, who is the
principal architect and owner of Diehl Group Architects. Diehl
has 40 years of professional practice experience as an architect
and is licensed in 14 states, including Arizona and California. He
prepared an investigation report, which HT submitted as well.
The investigation report stated that the location of the
accident was an unpaved parking lot. The City’s 2001 zoning
code established off-street parking and loading requirements that
required parking lot surfaces to be paved with asphalt or concrete
and provide signage and striping to fully delineate parking
facilities and drives, including stop signs and one-way signs as
necessary. In Diehl’s opinion, the parking lot lacked signage,
striping, or other devices to separate and direct pedestrian and
vehicle movement. Six months after the accident in this case, the
City updated the zoning code to provide more detailed
requirements for off-street parking and loading.
To reach his conclusions, Diehl relied on the City’s 2001
zoning ordinance. He relied on several months of City Council
agendas and meeting minutes, including a March 2016 agenda
item stating that representatives from the National Park
Services and the City Council had agreed to explore potential
improvements to the Horseshoe Bend overlook, including
identifying potential improvements to the design of parking,
trails, safety, and other features. He relied on a November 2016
intergovernmental cooperative management agreement between
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the National Park Service and the City to address health and
safety concerns and protection of resources at the Horseshoe
Bend trail area for one year. The agreement noted visitation to
Horseshoe Bend had increased 200 percent in recent years,
including a significant increase in tour bus and other traffic,
causing resource degradation and public health concerns. He
relied on statements attributed to City Council member Levi
Tappen and the police department in online news articles. In
addition, he relied on a February 2017 project proposal for
improvements at Horseshoe Bend, including plans for parking
and traffic circulation that proposed: defined internal circulation
for private tours; delineated parking layout, wheel stops, and
striping; and separate parking for commercial and large vehicles.
HT submitted deposition testimony of Officer Robert
Napier suggesting the parking lot was a highly congested area
with vehicles and pedestrians constantly walking and driving
through. HT also submitted deposition testimony of Officer
Trevor Campbell, who estimated the parking lot would probably
fit 100 cars.
HT submitted deposition testimony of the bus driver
involved in the accident. The parking lot was unpaved and not
entirely flat, but he was able to control the bus and did not think
there was any problem with the surface of the parking lot that
led to his bus striking Wu. The driver stated that the parking lot
was a loop where vehicles could only travel in one direction, but
there were no official signs, marking, or lined spaces in the
parking lot. He estimated that approximately 10 buses and
about 100 cars could fit in the parking lot. If he had seen Wu, he
could have stopped the bus before hitting her.
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HT submitted deposition testimony of plaintiff Pei Weng.
Weng stated that the parking lot had only one opening or
entrance that was connected to the entrance for the sightseeing
spots.
HT submitted deposition testimony of Ryan Loop, the
driver of another tour bus at the location. Loop estimated the
parking lot held more than 100 cars. The parking lot was
unpaved, with boulders, and no marked parking spaces. Wu was
walking around the parking lot taking pictures with her family.
As a bus driver, he tells people not to take pictures in parking
lots because it’s dangerous to be taking pictures with all the
vehicles parked there.
HT requested that the trial court take judicial notice of
several documents, including the statements attributed to City
Council member Tappan and the police department in the online
news article. HT also requested judicial notice of documents
attached to Diehl’s report, specifically the documents purporting
to be the 2001 zoning ordinance, City Council agendas, the
November 2016 intergovernmental cooperative management
agreement, and the February 2017 proposed project scope of work
for Horseshoe Bend improvements.
Reply, Objections, and Trial Court Ruling
The City filed a reply arguing that the recreational
immunity statute applied, and no triable material issue of fact
had been raised as to whether the City engaged in gross
negligence that was a direct cause of the decedent’s injury. The
evidence showed the City had no knowledge of accidents or
potential accidents at the parking lot, and there was no evidence
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that any conduct by the City was the direct cause of the accident.
The City argued Diehl was not a qualified expert under Evidence
Code section 720, and his investigation report contained multiple
levels of hearsay.
The City filed objections to HT’s request for judicial notice,
including the documents attached to Diehl’s report. In
particular, the City objected to taking judicial notice of the
following purported items: City Council agendas and meeting
minutes, statements in online news articles, a 2001 zoning
ordinance, an intergovernmental cooperative management
agreement, and the proposed scope of work for Horseshoe Bend
improvements. The City also argued that the items lacked
probative value.
The City also filed objections to HT’s exhibits in support of
summary judgment. Among the City’s objections, the City
objected to Diehl’s declaration on the grounds based on lack of
expert qualifications, improper expert opinion, lack of foundation,
relevance, and lack of probative value. The City objected to
Diehl’s summary of his investigation report on the same grounds.
The City objected to exhibits attached to Diehl’s investigation
report and hyperlinked website articles on the grounds of
hearsay, improper expert opinion, lack of foundation, relevance,
and lack of probative value.
The trial court issued a tentative ruling to deny the motion
for summary judgment on the ground that the City failed to show
the parking area constituted “premises” or that Wu was a
recreational user under the recreational immunity statute. The
court declined to rule on HT’s request for judicial notice or the
City’s evidentiary objections on the ground that they were not
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germane to the court’s ruling on the motion for summary
judgment.
A hearing was held on the summary judgment motion on
March 12, 2021. After taking the matter under submission, the
court granted the motion for summary judgment. The court
found that under section 33-1551, the parking lot constituted
“premises” and the decedent was a “recreational user.” The court
entered judgment in favor of the City on March 26, 2021. The
court denied HT’s motion for new trial, and HT filed a timely
notice of appeal.
DISCUSSION
Standard of Review
“ ‘We review the grant of summary judgment de novo.
[Citation.] We make “an independent assessment of the
correctness of the trial court’s ruling, applying the same legal
standard as the trial court in determining whether there are any
genuine issues of material fact or whether the moving party is
entitled to judgment as a matter of law.” [Citation.] A defendant
moving for summary judgment meets its burden of showing that
there is no merit to a cause of action by showing that one or more
elements of the cause of action cannot be established or that
there is a complete defense to that cause of action. (Code Civ.
Proc., § 437c, subd. (p)(2).) Once the defendant has made such a
showing, the burden shifts back to the plaintiff to show that a
triable issue of one or more material facts exists as to that cause
of action or as to a defense to the cause of action.’ ” (Howard
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Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102,
1113.)
“ ‘In performing our de novo review, we view the evidence
in the light most favorable to plaintiffs as the losing parties.
[Citation.] In this case, we liberally construe plaintiffs’
evidentiary submissions and strictly scrutinize defendants’ own
evidence, in order to resolve any evidentiary doubts or
ambiguities in plaintiffs’ favor.’ ” (Howard Entertainment, Inc. v.
Kudrow, supra, 208 Cal.App.4th at pp. 1113–1114.)
Evidentiary Objections
The trial court expressly declined to rule on the City’s
evidentiary objections, because the evidence was not relevant to
the court’s decision. HT contends that because the trial court
declined to rule on the objections, all of the evidence submitted in
opposition to summary judgment must be considered on appeal.
In response, the City renews its objections to Diehl’s declaration,
investigative report, and the documents attached to Diehl’s
report, including online news articles.
Written objections that the trial court fails to rule upon are
not waived on appeal. (Reid v. Google, Inc. (2010) 50 Cal.4th 512,
526.) The reviewing court applies a de novo standard of review to
evidentiary objections that the trial court failed to rule upon
which are raised again on appeal. (Id. at p. 535.) We therefore
review the City’s evidentiary objections de novo.
Online news articles containing statements attributed to a
City Council member and the police department are clearly
inadmissible hearsay, and the City’s objection to the news
articles must be sustained. (Evid. Code, § 1200.) Statements in
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the news articles submitted by HT are not considered in
evaluating the propriety of summary judgment. We need not
address the City’s remaining evidentiary objections, because even
if the evidence were admissible, no triable issue of fact has been
shown.
Recreational Immunity
HT contends Arizona’s recreational immunity statute does
not apply, because the premises covered by the statute do not
include the parking lot in this case. We conclude the parking lot
is covered under the statute.
A. Standards for Statutory Interpretation
The principles governing statutory interpretation relevant
to our analysis in this case are the same under both Arizona and
California law. Issues of statutory interpretation are reviewed de
novo. (BMO Harris Bank, N.A. v. Wildwood Creek Ranch, LLC
(2015) 236 Ariz. 363, 365; In re D.S. (2012) 207 Cal.App.4th 1088,
1097.) “Our primary goal in interpreting statutes is to effectuate
the legislature’s intent.” (Rasor v. Northwest Hospital, LLC
(2017) 243 Ariz. 160, 164; see Ennabe v. Manosa (2014)
58 Cal.4th 697, 713 (Ennabe).) “Words in statutes should be read
in context in determining their meaning.” (Stambaugh v. Killian
(2017) 242 Ariz. 508, 509; see Poole v. Orange County Fire
Authority (2015) 61 Cal.4th 1378, 1384–1385.) “Words and
phrases shall be construed according to the common and
approved use of the language” but “[t]echnical words and phrases
and those which have acquired a peculiar and appropriate
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meaning in the law shall be construed according to such peculiar
and appropriate meaning.” (§ 1-213; see Sacramento County
Alliance of Law Enforcement v. County of Sacramento (2007)
151 Cal.App.4th 1012, 1017.) The courts strictly construe section
33-1551, because it limits common-law liability by conferring
immunity. (Armenta v. City of Casa Grande (2003) 205 Ariz. 367,
368–369.)
B. Section 33-1551
At the time of the events in this case, section 33-1551(A),
provided in relevant part: “A public or private owner . . . of
premises is not liable to a recreational or educational user except
on a showing that the owner . . . was guilty of wilful, malicious or
grossly negligent conduct that was a direct cause of the injury to
the recreational or educational user.”2
Recreational use statutes are designed to alter common law
rules by limiting the duty of care that property owners owe
recreational users. (Bledsoe v. Goodfarb (1991) 170 Ariz. 256,
259.). The purpose of section 33-1551 is “to encourage
2 The Arizona Legislature made nonsubstantive
amendments to the relevant portions of section 33-1551 in 2022.
Section 33-1551(A) currently provides in full: “A public or private
owner, easement holder, lessee, tenant, manager or occupant of
premises is not liable to a recreational user or educational user
except on a showing that the owner, easement holder, lessee,
tenant, manager or occupant was guilty of wilful, malicious or
grossly negligent conduct that was a direct cause of the injury to
the recreational user or educational user. A recreational user or
educational user accepts the risks created by the user’s activities
and shall exercise reasonable care in those activities.”
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landowners to open certain lands to recreational users by limiting
liability for injuries to those users.” (Ibid.)
C. Premises
HT contends that the definition of “premises” in Arizona’s
recreational immunity statute does not include the parking lot in
this case where the death occurred. We disagree.
At the time of the incident, the former statute defined
premises as “agricultural, range, open space, park, flood control,
mining, forest, water delivery, water drainage or railroad lands,
and any other similar lands, wherever located, that are available
to a recreational or educational user, including paved or unpaved
multiuse trails and special purpose roads or trails not open to
automotive use by the public and any building, improvement,
fixture, water conveyance system, body of water, channel, canal
or lateral, road, trail or structure on such lands.” (former § 33-
1551(G)(4).)3
The statute applies to park lands available to a recreational
user, including any improvement on the land. A parking lot is an
improvement. Arizona law often defines improvements to include
parking areas. (See § 41-790(4) [“ ‘[i]nfrastructure’ ” includes
“nonbuilding improvements . . . such as . . . sidewalks and
parking lots”]; § 42-14156(B)(3) [for purposes of utility valuation,
“ ‘[r]eal property improvements’ ” includes parking lots]; § 9-
463(8) [“improvements” includes streets; “street” includes all land
3 In 2022, the Legislature amended the phrase
“recreational or educational user” in section 33-1551(G)(4) to
“recreational user or educational user.”
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in the right-of-way, including “parking space”].) We conclude the
plain meaning of improvement includes the parking lot in this
case.
HT contends that because the statute expressly applies to
special purpose roads that are not open to automotive use by the
public, by negative implication, the statute must exclude areas
open to automotive use. This is incorrect. The statute does not
provide an exhaustive list of the areas considered to be premises.
The word “including” is a term of enlargement, so expressly
naming certain areas that are covered by the statute does not
exclude areas that are not specifically mentioned. (See State ex
rel. Dep’t of Econ. Sec. v. Torres (2018) 245 Ariz. 554, 558; Rea v.
Blue Shield of California (2014) 226 Cal.App.4th 1209, 1227–
1228; People v. Hooper (2019) 40 Cal.App.5th 685, 692–693.)
More importantly, the statute expressly includes all roads
in the definition of premises, including special purpose roads that
are not open to automotive use by the public. If the statute had
not expressly listed special purpose roads, it could have been
argued that recreational immunity did not apply to special
purpose roads because they are unavailable to a recreational
user. The statute expressly includes all types of roads, however,
even special purpose roads that are not available for automotive
use by the public. The trial court properly concluded that the
statute applied to the parking lot in this case.
Gross Negligence
HT contends the evidence showed a triable issue of fact as
to whether the City was liable for gross negligence, which is an
exception to the recreational immunity statute. We conclude
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there was no evidence from which the trier of fact could find gross
negligence.
“A negligence claim requires proof of four elements: ‘(1) a
duty requiring the defendant to conform to a certain standard of
care; (2) a breach by the defendant of that standard; (3) a causal
connection between the defendant’s conduct and the resulting
injury; and (4) actual damages.’ ” (Noriega v. Town of Miami
(2017) 243 Ariz. 320, 326 (Noriega).) To show gross negligence
requires evidence of gross, willful, or wanton conduct. (Ibid.)
Section 33-1551(G)(2) does not apply to grossly negligent conduct,
which the statute defines as “a knowing or reckless indifference
to the health and safety of others.”
“ ‘A party is grossly or wantonly negligent if he acts or fails
to act when he knows or has reason to know facts which would
lead a reasonable person to realize that his conduct not only
creates an unreasonable risk of bodily harm to others but also
involves a high probability that substantial harm will result.’
[Citations.] Gross negligence ‘is different from ordinary
negligence in quality and not degree.’ [Citation.] It is ‘action or
inaction with reckless indifference to the . . . safety of others.’ ”
(Noriega, supra, 243 Ariz. at p. 328.)
“ ‘As between negligence and gross negligence, negligence
suggests “a failure to measure up to the conduct of a reasonable
person.” ’ [Citations.] And, ‘[g]ross negligence generally signifies
“more than ordinary inadvertence or inattention, but less
perhaps than conscious indifference to the consequences,” ’ which
‘falls closer to [the] recklessness standard’ that ‘usually involves a
conscious disregard of a risk.’ ” (Noriega, supra, 243 Ariz. at
pp. 328–329.)
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“Generally, whether gross negligence occurred is a question
of fact for a jury to determine. [Citation.] ‘In order to present
such an issue to the jury, gross negligence need not be
established conclusively, but the evidence on the issue must be
more than slight and may not border on conjecture.’ [Citation.]
Summary judgment is appropriate ‘if “no evidence is introduced
that would lead a reasonable person to find gross negligence.” ’ ”
(Noriega, supra, 243 Ariz. at p. 329.)
In this case, the City submitted evidence from its director
of Public Works and two police officers, all of whom worked
several years for the City, that they were not aware of any
collisions between pedestrians and vehicles in the parking lot.
This was sufficient to shift the burden of proof to HT, who did not
introduce any evidence creating a triable issue of fact as to
whether the City was aware of a health and safety risk caused by
the condition of the parking lot.
In addition, there was no evidence from which a reasonable
person could find the City’s conduct was grossly negligent. The
fact that the parking lot was unpaved did not create an
unreasonable risk of bodily harm; whether the parking lot was
paved had no bearing on where pedestrians stood in the parking
lot or where vehicles were driven. The lack of signage directing
the flow of traffic did not involve a high probability of substantial
risk, as traffic in the parking lot followed a one-way loop without
any signage directing vehicles in one direction. There was no
evidence that the lack of striping delineating parking spaces in
the lot created an unreasonable risk of bodily harm. For
example, there was no evidence that striping would have
prevented Wu from standing in the flow of traffic. There was no
evidence of any method or requirement to direct pedestrians who
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were getting out of their vehicles in the parking lot that would
have prevented a recreational user from moving into the flow of
traffic while taking a photo. No trier of fact could conclude that
the City was grossly negligent in allowing the conditions in the
parking lot.
The trial court properly granted summary judgment on the
issue of gross negligence, because there was no admissible
evidence that the City had any knowledge of a health and safety
risk presented by the condition of the parking lot, and there was
no evidence that the conditions of the parking lot identified by
HT presented an unreasonable risk of bodily harm with a high
probability that substantial harm would result.
DISPOSITION
The judgment is affirmed. City of Page, Arizona, is
awarded its costs on appeal.
NOT TO BE PUBLISHED.
MOOR, J.
We concur:
BAKER, Acting P. J.
KIM, J.
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