Calhoon v. Lewis

• Decision Date: 01 June 2000
• Court: California Court of Appeals Court of Appeals
• Parties: (Cal.App. 4 Dist. 2000) MICHAEL ALAN CALHOON, Plaintiff and Appellant, v. ALAN LEWIS et al., Defendants and Respondents. D033168 Filed

96 Cal.Rptr.2d 394 (Cal.App. 4 Dist. 2000)

MICHAEL ALAN CALHOON, Plaintiff and Appellant, v. ALAN LEWIS et al., Defendants and Respondents.

D033168

COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION ONE, STATE OF CALIFORNIA

Filed 6/1/00

APPEAL from a judgment of the Superior Court of San Diego County, Anthony C. Joseph, Judge. Affirmed.

(Super. Ct. No. 709403)

Ernest Calhoon for Plaintiff and Appellant.

Dyer & Everett and Roger C. Dyer for Defendants and Respondents.

CERTIFIED FOR PUBLICATION

HALLER, J.

While waiting for a friend, a young man skateboarded in his friend's driveway. He fell into a planter and was injured by a metal pipe inside the planter. He sued his friend's parents, who had placed the planter in the driveway. We conclude the trial court properly granted summary judgment because the plaintiff voluntarily assumed the risks inherent in skateboarding and the defendants owed no affirmative duty to the plaintiff to make the driveway safe for skateboarding activities.

FACTUAL AND PROCEDURAL BACKGROUND

One morning, Michael Calhoon and Wade Lewis agreed that Michael would pick up Wade at his parents' house and then they would drive downtown to visit Wade's girlfriend. When Michael arrived at the Lewises' house, Wade was not ready to leave and asked Michael to wait for a few minutes. While he waited, Michael skateboarded in the Lewises' driveway in front of the garage.

Michael skateboarded for about 10 to 15 minutes, successfully performing a trick, known as an "ollie."¹ As he prepared to perform the trick again, Michael skateboarded across the driveway in the direction of the garage. He attempted to ollie again, but lost control of his skateboard. As he was losing his balance, Michael took three steps backwards. The back of his legs struck a planter located near the garage causing Michael to fall and impale himself on a metal pipe in the planter. Michael suffered serious injuries.

Michael sued the Lewises for negligence and premises liability.²

In moving for summary judgment, the Lewises presented evidence showing Michael was an experienced skateboarder, who visited Wade "on a daily basis." Michael was aware of the planter and did not consider it to be an obstacle while skateboarding. Michael knew falling was a risk of skateboarding and had fallen numerous times in the past. The planter, which is a small round wooden half-barrel about two feet high, was located in the driveway where the house and the garage meet. Michael admitted at his deposition that the Lewises did not have a reason to believe the planter would be involved in skateboarding activities.

Based on this evidence, the Lewises argued (1) Michael's claim was barred under the doctrine of primary assumption of risk; and (2) the Lewises were immune under Civil Code section 846 (section 846), which abrogates a landowner's duty of care toward an individual who was not "invited" onto the property.

Michael opposed the motion, arguing the assumption of risk doctrine was inapplicable because the Lewises increased the risk of injury, and he could not reasonably foresee the risk. Michael also argued section 846 was inapplicable as a matter of law, or at the very least the issue posed a factual question.

Michael produced evidence that Wade had specifically invited him to come onto the property. Michael also submitted evidence showing Wade's father had originally placed the copper pipe in the planter several months before the accident to "hold a [vine] up . . . ," but this vine had since been removed from the planter. Mr. Lewis put the pipe toward the back of the planter "for safety purposes" and because "the morning glories were growing from that pole." Mrs. Lewis later moved the pipe to the center of the planter. The Lewises never warned Michael about the existence of the pipe or that the pipe in the planter would make skateboarding dangerous. In their interrogatory responses, the Lewises admitted that Michael, Wade and several other individuals had skateboarded in the Lewises driveway. During his deposition, Michael denied that he had previously skateboarded on the Lewises' driveway.

The trial court granted the summary judgment motion based on the section 846 immunity. Michael appeals. We affirm, concluding that although the court erred on the section 846 immunity issue, Michael's claims are barred by the assumption of risk doctrine.

DISCUSSION

"Summary judgment is proper only if there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc, 437c, subd. (c).) A court must "strictly construe the moving party's papers and liberally construe those of the opposing party to determine if they raise a triable issue of material fact." (Stimson v. Carlson (1992) 11 Cal.App.4th 1201, 1204-1205.) We conduct a de novo review, reviewing the trial court's ruling, not its reasoning. (McCorkle v. State Farm Ins. Co. (1990) 221 Cal.App.3d 610, 615, fn. 2.)

I. Section 846

The trial court found Michael's claims were barred by the immunity set forth in section 846.³ Michael contends summary judgment on this basis was improper because he produced facts showing this case fell within an exception listed in the final paragraph of section 846, permitting an action by one who was "expressly invited" onto the defendant's property. ( 846, subd. (c).)⁴ We agree.

The first paragraph of section 846 states a property owner owes no duty to "keep the premises safe for entry or use by others for any recreational purposes . . . , except as provided in this section." The final paragraph of section 846 sets forth three exceptions to this general "no-duty" rule, one of which states "[t]his section does not limit the liability which otherwise exists . . . to any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner." ( 846, subd. (c), italics added.)

In opposing summary judgment, Michael produced facts showing Wade personally invited him to come onto the Lewises property to pick him up. This would seem to easily bring this case into section 846, subdivision (c)'s "expressly invited" exception. (See Phillips v. United States (9th Cir. 1979) 590 F.2d 297, 299 [the Legislature intended the phrase "expressly invited" to mean "those persons who were personally selected [to come onto the property] by the landowner"]; cf. Johnson v. Unocal Corp. (1993) 21 Cal.App.4th 310, 315 [exception found inapplicable because defendant did not extend a "direct, personal request" for plaintiff to attend picnic on land].)

The Lewises nonetheless urge us to find the statutory exception inapplicable because they did not specifically invite Michael onto their property for the purpose of skateboarding. The Lewises contend the subdivision (c) exception contemplates an express invitation to participate in recreational activities, not an express invitation merely to enter the property. This novel argument is not supported by any applicable authority.

In construing a statute, we must focus on the statutory language. (Johnson v. Unocal Corp., supra, 21 Cal.App.4th at p. 314.) Absent a contrary indication, we must presume the Legislature meant what it said. (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1245.) The language of section 846, subdivision (c), which refers to "any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner" does not say a person must be invited for a recreational purpose. The exception instead defines a person who is "expressly invited" by distinguishing this person from one who is "merely permitted" to come onto the land. It is undisputed that Michael received a personal invitation to come onto the Lewises property. In other words, he was invited rather than merely permitted. Given this fact, section 846 does not provide the Lewises with immunity.

Our interpretation is consistent with the legislative purpose underlying section 846, which 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.'" (Johnson v. Unocal Corp., supra, 21 Cal.App.4th at p. 315; see Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1103; Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 707-708 (Delta Farms). The Legislature provided the immunity to encourage landowners to permit the "'general public to recreate . . . on privately owned property'" (Delta Farms, supra, 33 Cal.3d at p. 707, italics omitted) "without fear of reprisal in the form of lawsuits." (Johnson v. Unocal Corp., supra, 21 Cal.App.4th at p. 315.) By carving out an exception for those persons who are personally invited, the Legislature showed it did not have a similar concern with encouraging property owners to provide access for the owner's personal guests. This distinction makes sense. Property owners do not need governmental encouragement to permit personal guests to come onto their land.

We reject the Lewises' alternate argument that the Legislature intended courts to apply common law "invitee" and "licensee" categories for purposes of applying the exception. The statute specifically distinguishes between one who is invited and one who is permitted to come onto the land, and these labels do not necessarily match the common law categories of invitees and licensees. Additionally, while these common law categories were in existence when the statute was originally enacted and may have some continuing relevance in applying other parts of the statute (see Delta Farms, supra, 33 Cal.3d at p. 706), there is no textual basis or legislative history supporting a conclusion that the Legislature intended the categories to be of significance with respect to the subdivision (c) exception.

The Lewises also rely on decisions holding that persons responding to advertisements, brochures, promotional materials, and other public offers are not express...