Pac. Gas & Elec. Co. v. Superior Court of San Mateo Cnty.

• Decision Date: 05 April 2017
• Docket Number: A146495
• Citation: 10 Cal.App.5th 563,216 Cal.Rptr.3d 426
• Court: California Court of Appeals Court of Appeals
• Parties: PACIFIC GAS AND ELECTRIC COMPANY, Petitioner, v. The SUPERIOR COURT of San Mateo County, Respondent; Zachary Rowe, a Minor, etc., et al., Real Parties in Interest.

10 Cal.App.5th 563

216 Cal.Rptr.3d 426

PACIFIC GAS AND ELECTRIC COMPANY, Petitioner,

v. The SUPERIOR COURT of San Mateo County, Respondent;Zachary Rowe, a Minor, etc., et al., Real Parties in Interest.

A146495

Court of Appeal, First District, Division 2, California.

Filed April 5, 2017

As Modified on Denial of Rehearing April 20, 2017

Horvitz & Levy, Robert H. Wright, Jeremy B. Rosen ; Pacific Gas & Electric Company, Barbara J. Damlos ; Sedgwick LLP, Gregory C. Read for Petitioner.

Rouda, Feder, Tietjen & McGuinn, Timothy G. Tietjen ; Law Office of Gerald Clausen and Gerald Clausen for Real Party in Interest.

STEWART, J.

Civil Code section 846, California's recreational use immunity statute, confers property owners with immunity from liability arising from the recreational use of their property.¹ (See § 846.) At issue here is one of its enumerated exceptions, applicable when permission to enter the premises for a recreational purpose "was granted for a consideration." (Id ., 4th par., item (b).)

Twelve-year-old Zachary Rowe suffered catastrophic injuries during a camping trip with his family to San Mateo County Memorial Park, when a 75-foot tree fell on his tent at 5:00 a.m. as he lay sleeping. Petitioner Pacific Gas and Electric Company (PG&E) owns and maintains an electricity distribution line in the park that serviced a nearby restroom, and has a license conferred by its utility tariff permitting it to enter the park to inspect and maintain its equipment and the vegetation in the vicinity of its power lines, including near the campsite where Zachary was injured. Zachary's family paid an entrance fee to camp there only to the park's owner, the County of San Mateo (County), but paid nothing to PG&E. It also is undisputed the County paid PG&E for electricity used at the park.

Here, we are asked to decide whether PG&E retains its immunity under section 846, notwithstanding the payment of this camping fee to the County (there being no dispute that the statute otherwise applies to PG&E as a licensee of the campground's owner). PG&E contends that it does retain immunity, asking us to construe the consideration exception as applicable only when the defendant claiming immunity receives all or some portion of the consideration paid.

We reject that interpretation of section 846. We conclude that the consideration exception to recreational use immunity does apply to PG&E even though Zachary's fee for recreational access to the campground was not paid to it, and therefore affirm the trial court's denial of PG&E's motion for summary judgment asserting section 846 immunity. We hold that the payment of consideration in exchange for permission to enter a premises for a recreational purpose abrogates the section 846 immunity of any nonpossessory interest holder who is potentially responsible for the plaintiff's injuries, including a licensee or easement holder who possesses only a limited right to enter and use a premises on specified terms but no right to control third-party access to the premises. The contrary interpretation urged by PG&E, making immunity contingent not on payment of consideration but its receipt, is supported neither by the statutory text nor the Legislature's purpose in enacting section 846, which was to encourage free public access to property for recreational use. It also would lead to troubling, anomalous results we do not think the Legislature intended. At bottom, construing this exception as applying only to defendants who receive or benefit from the consideration paid loses sight of the fact that recreational immunity is merely a tool. It is the Legislature's chosen means, not an end unto itself.

BACKGROUND

In the summer of 2012, Zachary and his family went camping in San Mateo County Memorial Park. Zachary's mother paid a $ 50 fee to the County for their five-night campsite rental.

An electrical line runs adjacent to the campsite they rented, which delivers electricity to nearby restrooms. PG&E owns and maintains the electrical line, which consists of nine poles, approximately 1,715 feet of electrical wire, transformers and other equipment. Pursuant to its utility tariff, PG&E has the right to enter the park to inspect and maintain the line and perform vegetation management, and it regularly does so.²

At approximately 5:00 in the morning on July 23, 2012, a 75-foot tall tree fell and struck the tent at Campsite D-1 that Zachary occupied with his mother. The tree was located approximately 30 to 40 feet from PG&E's power line, within striking distance of the line had it fallen in that direction. Zachary suffered catastrophic injuries.

Zachary, through his guardian ad litem, brought suit against PG&E, the County and others. He asserted a single cause of action against PG&E for negligence, alleging PG&E "was responsible for maintaining its electrical lines and adjacent areas in a safe condition," but "negligently inspected and maintained the trees in proximity to the electrical lines adjacent to [the campsite] where [Zachary] was severely injured," and failed to warn him and his mother "of the dangerous conditions presented by the diseased and rotten trees adjacent to the electrical lines and [his] campsite."

PG&E moved for summary judgment on the ground that it owed Zachary no duty of care as a matter of law pursuant to section 846. The trial court denied the motion, certified the question as appropriate for our interlocutory review under Code of Civil Procedure section 166.1, and this petition for writ of mandate followed.

DISCUSSION

I.Overview

" Section 846 was enacted to encourage property owners to allow the general public to engage in recreational activities free of charge on privately owned property." (Hubbard v. Brown (1990) 50 Cal.3d 189, 193, 266 Cal.Rptr. 491, 785 P.2d 1183 (Hubbard ); accord, Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 707, 190 Cal.Rptr. 494, 660 P.2d 1168 (Delta Farms ).) "The statutory goal was to constrain the growing tendency of private landowners to bar public access to their land for recreational uses out of fear of incurring tort liability." (Hubbard , at p. 193, 266 Cal.Rptr. 491, 785 P.2d 1183.) It expresses "a strong policy that land should be open to recreational use." (Id. at p. 192, 266 Cal.Rptr. 491, 785 P.2d 1183.) The statute accomplishes this goal "by immunizing persons with interests in property from tort liability to recreational users, thus making recreational users responsible for their own safety and eliminating the financial risk that had kept land closed." (Ibid . ) Yet the Legislature didn't intend to protect landowners at all cost. "[I]n crafting legislation that would prevent the closure of private lands to recreational users because of landowners' liability concerns, the California Legislature sought to strike a fair balance between the interests of private landowners and those of recreational users."³ (Klein v. United States (2010) 50 Cal.4th 68, 82, 112 Cal.Rptr.3d 722, 235 P.3d 42 (Klein ).)

Section 846's first paragraph "defines the scope of immunity."⁴ (Klein , supra , 50 Cal.4th at p. 77, 112 Cal.Rptr.3d 722, 235 P.3d 42.) That paragraph states: "An owner of any estate or any other interest in real property , whether possessory or nonpossessory, 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 those premises to persons entering for a recreational purpose, except as provided in this section." (§ 846, 1st par., italics added.) There is no dispute that PG&E's license under its utility tariff constitutes an "interest" in San Mateo County Memorial Park that qualifies for protection under this paragraph. The statute "clearly" applies to "private owners of easements and of revocable licenses." (Hubbard , supra , 50 Cal.3d at p. 197, 266 Cal.Rptr. 491, 785 P.2d 1183.) It "immunize[s] owners of any interest in real property, regardless of whether the interest includes the right of exclusive possession."⁵ (Ibid . ; see also Manuel v. Pacific Gas & Electric Co. (2009) 173 Cal.App.4th 927, 938, fn. 3, 93 Cal.Rptr.3d 9 [utility easement holder]; Colvin v. Southern Cal. Edison Co. (1987) 194 Cal.App.3d 1306, 1312, 240 Cal.Rptr. 142 [same], abrogated on other grounds in Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1103–1109, 17 Cal.Rptr.2d 594, 847 P.2d 560 (Ornelas ).)

Section 846's second paragraph defines the phrase "recreational purpose," by means of a non-exhaustive list of activities that "range from risky activities enjoyed by the hardy few ... to more sedentary pursuits amenable to almost anyone...." (Ornelas , supra , 4 Cal.4th at p. 1101, 17 Cal.Rptr.2d 594, 847 P.2d 560.) It includes "camping." (§ 846, 2d par.)

The third paragraph of section 846"adds an additional immunity." (Klein , supra , 50 Cal.4th at p. 78, 112 Cal.Rptr.3d 722, 235 P.3d 42.) It states: "An owner of any estate or any other interest in real property, whether possessory or nonpossessory, who gives permission to another for entry or use for the above purpose upon the premises does not thereby (a) extend any assurance that the premises are safe for that purpose, or (b) constitute the person to whom permission has been granted the legal status of an invitee or licensee to whom a duty of care is owed, or (c) assume responsibility for or incur liability for any injury to person or property caused by any act of the person to whom permission has been granted except as provided in this section." (§ 846, 3d par.)

The consideration exception appears in the statute's fourth paragraph, which sets forth three "limitations on, or exceptions to, the landowner immunity it has granted." (Klein , supra , 50 Cal.4th at p. 78, 112 Cal.Rptr.3d 722, 235 P.3d 42.) It states: "This section does not limit the liability which otherwise exists (a) for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity; or (...