Amberger-Warren v. City of Piedmont

• Decision Date: 06 October 2006
• Docket Number: No. A112886.,A112886.
• Citation: 143 Cal.App.4th 1074,49 Cal.Rptr.3d 631
• Court: California Court of Appeals Court of Appeals
• Parties: Anni AMBERGER-WARREN, Plaintiff and Appellant, v. CITY OF PIEDMONT, Defendant and Respondent.

49 Cal.Rptr.3d 631

143 Cal.App.4th 1074

Anni AMBERGER-WARREN, Plaintiff and Appellant, v. CITY OF PIEDMONT, Defendant and Respondent.

No. A112886.

Court of Appeal, First District, Division 1.

October 6, 2006.

Meier & Wolff, Andrew Wolff, Oakland, (Attorney for Plaintiff/Appellant — Amberger-Warren).

Low, Ball & Lynch, Mark F. Hazelwood, Guy W. Stilson, San Francisco, (Attorneys for Defendant/Respondent — City of Piedmont).

MARCHIANO, P.J.

Plaintiff Anni Amberger-Warren was injured when she slipped and fell in a dog park in Piedmont. She sued the City of Piedmont on the theory that her injuries were caused by a dangerous condition of public property, and defendant obtained summary judgment on the basis of trail immunity (Gov.Code, § 831.4, subd. (b)).¹ Plaintiff contends on appeal that, as a matter of law or as a triable issue of fact, the accident did not occur on a "trail" within the meaning of the immunity statute, and that, even if the accident happened on a trail, defendant is not insulated from liability because the accident was caused by dangerous conditions defendant created that were "unrelated" to the trail.

We examine the application of section 831.4 to a paved pathway in an urban park setting. The principal issues are: (1) whether the pathway in question was a "sidewalk" for purposes of section 831.4, and, if so, whether a sidewalk can ever be a "trail" under the statute; and (2) whether trail immunity precludes liability for the design and location, as well as the maintenance, of a trail. We hold that the pathway here is a trail under the statute, even if it could be characterized as a sidewalk, and that trail immunity covers claims arising from a trail's design and location. Based on these and other conclusions discussed below, we affirm the judgment.

I. FACTS

Around 6:00 p.m. on June 29, 2004, plaintiff and her eponymous dog Diogi, and Susan Chow and her dog Rufus, were in the off-leash "lower loop" section of Linda Park, a dog park owned and operated by defendant. The off-leash area appears from the photos in evidence to be a fenced-in section of the park. "Designated Off-Leash Rules" are posted on the gated entrance to the area and inside it, which state among other things that "[o]wners are responsible for all injuries and/or property damage." Plaintiff admits that, before the accident in question, she had brought dogs to this off-leash area nearly every day for at least eight years without any mishap.

The "lower loop" is a paved pathway across a hill; the hill is described in the record as "a dirt embankment." Plaintiff and Chow were sitting on benches toward the bottom of the pathway while Diogi and Rufus played unleashed, when a woman came down the pathway and, apparently to protect her smaller dogs from Diogi and Rufus, said, "Get your dog." When plaintiff went up the pathway to put a leash on Diogi, she was bumped by Diogi or Rufus, slipped on some debris on the pathway, and fell backward, landing "part-way off" the pathway. To avoid going down the hill next to the pathway, she grabbed an exposed cement edge as she fell, and injured her hand in the process.

II. DISCUSSION

A. Trail Immunity

Section 831.4, subdivisions (a) and (b) provide that: "A public entity . . . is not liable for an injury caused by a condition of: [¶] (a) Any unpaved road which provides access to fishing, hunting, camping, hiking, riding, including animal and all types of vehicular riding, water sports, recreational or scenic areas and which is not a(1) city street or highway or (2) county, state or federal highway or (3) public street or highway of a joint highway district, boulevard district, bridge and highway district or similar district formed for the improvement or building of public streets or highways. [¶] (b) Any trail used for the above purposes." This immunity is afforded "to encourage public entities to open their property for public recreational use, because `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.'" (Armenio v. County of San Mateo (1994) 28 Cal.App.4th 413, 417, 33 Cal.Rptr.2d 631 (Armenio).) The trail immunity provided in subdivision (b) of the statute extends to trails that are used for the activities listed in subdivision (a), and to trails that are used solely for access to such activities. (Treweek v. City of Napa (2000) 85 Cal.App.4th 221, 224-229, 101 Cal. Rptr.2d 883 (Treweek).) The immunity applies whether or not the trail is paved. (Armenio, supra, 28 Cal.App.4th at p. 418, 33 Cal.Rptr.2d 631.)

B. Whether the Accident Occurred on a Trail

Plaintiff submits that the pathway on which she was injured was not a trail for purposes of section 831.4, subdivision (b), or that the question is at least a triable issue of fact in this instance. We conclude that as a matter of law the pathway was a trail under the statute for the following reasons.

Whether the property is a trail depends on a number of considerations, including accepted definitions of the property (Carroll v. County of Los Angeles (1997) 60 Cal.App.4th 606, 609, 70 Cal.Rptr.2d 504 (Carroll); Treweek, supra, 85 Cal. App.4th at p. 230, 101 Cal.Rptr.2d 883), the purpose for which the property is designed and used, and the purpose of the immunity statute (Farnham v. City of Los Angeles (1998) 68 Cal.App.4th 1097, 1103, 80 Cal. Rptr.2d 720 (Farnham)). Each of these three factors militates in favor of immunity in this case.

First, the pathway constitutes a trail under accepted definitions because it is a paved pathway through a park, and a "path," as Carroll, supra, 60 Cal.App.4th at p. 609, 70 Cal.Rptr.2d 504, observed, is synonymous with a "trail." (See ibid. [dictionary definition of a trail as "`a marked or established path or route'. . . ."]; Treweek, supra, 85 Cal.App.4th at p. 230, 101 Cal.Rptr.2d 883 [a trail "consist[s] primarily of a path or track"]; compare Treweek, supra, at p. 230, 101 Cal.Rptr.2d 883 [dictionary and judicial definitions did not suggest that a "ramp" was synonymous with a "trail"].)

Second, the pathway qualifies as a trail because it is designed and used for a recreational purpose, i.e., bringing a dog to an unleashed area of a dog park, a form of recreation for both dog and walker. (See generally Armenio, supra, 28 Cal.App.4th at p. 418, 33 Cal.Rptr.2d 631 [the purpose for which trail is used "is ordinarily viewed as a factual issue, but it becomes a question of law if only one conclusion is possible"].) The pathway is indistinguishable in this regard from the paved paths found to be trails in other cases. (Farnham, supra, 68 Cal.App.4th at pp. 1099, 1102-1103, 80 Cal.Rptr.2d 720 [bicycle path], Carroll, supra, 60 Cal.App.4th at p. 607, 70 Cal. Rptr.2d 504 [bike path], and Armenio, supra, 28 Cal.App.4th at pp. 415, 418, 33 Cal.Rptr.2d 631 [path for walking, running, bike riding, and horseback riding].) This conclusion obtains whether the pathway is viewed as providing access to the recreational activity, or the activity is deemed to occur on the pathway itself. (Treweek, supra, 85 Cal.App.4th at pp. 224-229, 101 Cal.Rptr.2d 883.) Plaintiff asserts that trails have heretofore been found to exist only in "remote areas," but the bicycle path deemed to be a trail in Farnham, supra, 68 Cal.App.4th at pp. 1098-1099, 80 Cal.Rptr.2d 720, could not have been too remote because it was located in the city of Los Angeles. Urban recreational areas fulfill many of the same purposes as remote areas. Neither public policy nor the statute suggest any such differentiation.

Third, the pathway should be treated as a trail to fulfill the purpose of the statute, because public entities could well be inclined to close dog parks if they were exposed to liability for accidents like the one here. (Compare Treweek, supra, 85 Cal.App.4th at pp. 232-234, 101 Cal. Rptr.2d 883 [municipality would be unlikely to close a ramp connecting a dock to a boat or a parking lot absent the extension of immunity].) As the court in Farnham, supra, 68 Cal.App.4th at page 1103, 80 Cal.Rptr.2d 720, observed with respect to a paved bike path, while it is "reasonable that users would expect a paved surface to be appropriately constructed and maintained," "the flip side . . . is the difficulty cities and counties might face in inspection and repair. Paved trails are subject to changing irregularity of surface conditions due to seismic movement, natural settlement or stress from traffic. Additionally, the weather can cause dirt or sand to be blown on a trail, creating an unsafe surface for almost any user. Rocks, tree branches and other debris often find their way onto a trail. . . . In today's litigious society, it does not take a very large crystal ball to foresee the plethora of litigation cities or counties might face over bicycle paths . . . . The actual cost of such litigation, or even the specter of it, might well cause cities or counties to reconsider allowing the operation of a bicycle path. . . ." For all these same reasons, the purpose of the statute would be well-served by the recognition of immunity here.

Plaintiff asserts that this pathway is a "sidewalk," and argues that a sidewalk cannot constitute a "trail" under section 831.4, subdivision (b), because subdivision (c) of the statute distinguishes between trails and sidewalks.² Subdivision (c) provides immunity for injuries caused by the condition of: "Any paved trail, walkway, path, or sidewalk on an easement of way which has been granted to a public entity, which easement provides access to any unimproved property, so long as such public entity shall reasonably attempt to provide adequate warnings of the existence of any condition of the paved trail, walkway, path, or sidewalk which constitutes a hazard to health or safety. Warnings required by this subdivision shall only be required where pathways are paved, and such...