Nelsen v. City of Gridley

• Citation: 169 Cal.Rptr. 757,113 Cal.App.3d 87
• Court: California Court of Appeals
• Decision Date: 10 December 1980
• Parties: Vernon NELSEN, Plaintiff and Appellant, v. CITY OF GRIDLEY, Defendant and Respondent. Civ. 19073.

Page 757

169 Cal.Rptr. 757

113 Cal.App.3d 87

Vernon NELSEN, Plaintiff and Appellant, v. CITY OF GRIDLEY, Defendant and Respondent.

Civ. 19073.

Court of Appeal, Third District, California.

Dec. 10, 1980.

Hearing Denied Feb. 11, 1981.

Matthews & Fuqua, Morey W. Fuqua, Chico, for plaintiff and appellant

Barr, Minoletti, Newlan & Beasley, Roberta Lee Franklin, Redding, for defendant and respondent.

FINNEY, ^* Associate Justice.

In the underlying action, plaintiff Vernon Nelsen sued defendant City of Gridley for injuries sustained when he struck a cable stretched across a city-owned paved road while riding his motorcycle. The theory of liability was that the cable constituted a known "dangerous condition" on city property. (See Gov.Code, § 835.) The court granted summary judgment in favor of defendant city on the basis of the immunity provision of section 846 of the Civil Code. ¹ Our review of the facts and the law leads us to reverse the judgment of the trial court.

We set forth the facts pertinent to our review as established both in support of and in opposition to the motion for summary judgment:

On Easter Sunday 1977, plaintiff was returning from a drug store on his motorcycle when he entered for the first time what he described as an "extension of Washington Street." He did not recall seeing any warning sign prior to hitting and being injured by a cable barrier stretched across the road.

Washington Street proper borders and provides access to a city park. At the time of the accident the street had been dedicated to public use and accepted into the city's street system.

The accident, however, occurred on a paved extension of Washington Street which was neither dedicated nor formally accepted into the city's street system. Shortly before the dedicated portion of Washington Street ended at its intersection with Locust Street, a "NOT A THROUGH STREET" sign was posted. Beyond the intersection the continuing road narrowed and curved around the park to end at a gate providing access to a city storage facility. The first portion of the road beyond the intersection was on private property; the latter portion was on city property. By oral agreement with the private property owner, the city had a limited right-of-way to use the private portion of the road to reach the storage facility. The city paved both portions of this service road.

The actual cable barrier where the accident occurred was located on the city-owned portion of the service road; it was placed there by city employees and was approximately 590 feet from the intersection of Washington and Locust Streets and approximately 240 feet from the gate to the storage facility. Hanging from the cable was a sign reading "STOP." Adjacent to the cable was a sign on a pole reading "PRIVATE ROAD-KEEP OUT."

Between the sign on Washington Street posting "NOT A THROUGH STREET" and the signs at the location of the cable, no additional signs were posted. Although the city's stated purpose for having the service road was to provide employee access to the storage facility, the city apparently took no steps to prevent the public from using the road up to the point of the cable barrier.

DISCUSSION

As already noted, summary judgment was founded upon the applicability of the immunity provision of Civil Code section 846. At the time of the accident, that section provided in pertinent part:

"An owner of any estate in real property owes no duty of care to keep the premises safe for entry or use by others for fishing, hunting, camping, water sports, hiking, spelunking, riding, including animal and all types of vehicular riding, rock collecting, or sightseeing or to give any warning of hazardous conditions, uses of, structures, or activities on such premises to persons entering for such purposes, ..." except where liability "... otherwise exists (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 purposes was granted for a consideration other than the consideration, if any, paid to said landowner by the state; or (c) to any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner...." (Emphasis added.) (Stats. 1976, ch. 1303, § 1, p. 5859.) ²

The issue presently before us is whether the general phrase "an owner of any estate in real property," as used in section 846, includes a public entity owner of real property. Utilizing well-established principles for construing legislative intent, we conclude that it does not.

"Where a statute is not expressly made applicable to government, it is for the courts to determine whether the Legislature intended it to apply to government." (People v. Centr-O-Mart (1950) 34 Cal.2d 702, 704, 214 P.2d 378.) The general statute must be read in the context of the purpose for which it was enacted to give it sense and to guard against an application not contemplated by the Legislature. (See 58 Cal.Jur.3d, Statutes, § 90, p. 444.) Unfortunately the Legislature has been silent about its underlying intent in enacting section Civil Code 846. We, however, are aided by recent judicial decisions upholding the constitutionality of the immunity provision by interpreting it to have a legitimate legislative goal of reducing landowner tendency to remove real property from recreational access. (Parish v. Lloyd (1978) 82 Cal.App.3d 785, 787-788, 147 Cal.Rptr. 431; Lostritto v. Southern Pac. Transportation Co. (1977) 73 Cal.App.3d 737, 749, 140 Cal.Rptr. 905.) Although these decisions dealt only with the constitutionality of the section in the context of a private landowner defendant, the Parish court found the intent of the Legislature to be specific: to encourage private landowners to allow the general public to recreate free of charge on their property. (Parish, at p. 788, 147 Cal.Rptr. 431; see also Smith v. Scrap Disposal Corp. (1979) 96 Cal.App.3d 525, 529, 158 Cal.Rptr. 134.)

We find the limited purpose of section 846 as expressed in Parish to be persuasive. It would make little sense to apply the section's broad immunity to all types of public properties. If, for example, the publicly owned property in question were a city park intended solely as a public recreational facility, a statutory grant of immunity on such property would not further encourage recreational usage. Or, as in the case of a public road the very purpose of which is to provide an avenue for public travel, there would be no rational basis for granting immunity based on the injured person's use of the road for a recreational purpose as opposed to some other purpose.

In contrast to the general language of section 846 in the Civil Code, Chapter 2 of the California Tort Claims Act (Gov. Code, §§ 830-840.6) sets forth in a rational, specific, and comprehensive manner the duty of public entities to take reasonable precautions to prevent injuries from dangerous conditions on their property subject to specifically stated exceptions and immunities. (See Cal. Government Tort Liability Practice (Cont.Ed.Bar 1980) § 3.49, pp. 268-270.) Section 830, subdivision (c), clearly defines public property as "real or personal property owned or controlled by the public entity," not including "easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the public entity." Section 835 is the basic statutory provision creating a duty of care under defined circumstances as to dangerous conditions on public property. Exceptions to its provision must be by statute. (§§ 835; 815, subd. (b).) Other specific sections within Chapter 2 provide well-outlined exceptions to liability for dangerous conditions on public property often used for recreational purposes in ways that differ from Civil Code section 846.

For example, section 831.2 grants absolute immunity for natural conditions of any unimproved public property, including lakes, streams, bays, rivers, and beaches. In a similar manner, section 831.4, subdivision (a), provides absolute governmental immunity for unpaved roads or any trails, which provide "access to fishing, hunting, camping, hiking, riding, including animal and all types of vehicular riding, water sports, recreational or scenic areas ...." ³ (Emphasis added.) Excepted from the section's provisions are, inter alia, city streets and highways. The Senate legislative committee comment accompanying sections 831.2 and 831.4 states in part the purpose of these sections in the following unmistakable language: "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." (32 West's Ann.Gov.Code (1980 ed.) pp. 293, 295; see also County of Sacramento v. Superior Court (1979) 89 Cal.App.3d 215, 219-220, 152 Cal.Rptr. 391.)

In addition, section 831.6 gives absolute immunity for unimproved and unoccupied portions of certain state lands and section 831.8 gives qualified governmental immunity for the artificial conditions of reservoirs and canals. Under the latter, immunity follows only if the property is used for a purpose other than that for which the public entity intended or permitted the property to be used and does not follow in certain instances where the person injured is...