Charpentier v. Von Geldern

• Decision Date: 16 April 1987
• Citation: 236 Cal.Rptr. 233,191 Cal.App.3d 101
• Court: California Court of Appeals Court of Appeals
• Parties: Gary CHARPENTIER, Plaintiff and Appellant, v. Marjorie VON GELDERN, Defendant and Respondent. Civ. C000116.

Page 233

236 Cal.Rptr. 233

191 Cal.App.3d 101

Gary CHARPENTIER, Plaintiff and Appellant, v. Marjorie VON GELDERN, Defendant and Respondent.

Civ. C000116.

Court of Appeal, Third District, California.

April 16, 1987.

Cartwright, Sucherman & Slobodin, Inc., and Michael B. Moore, San Francisco, for plaintiff and appellant.

Weintraub, Genshlea, Hardy, Erich & Brown and Roger T. Stewart, Sacramento, for defendant and respondent.

EVANS, Associate Justice.

Plaintiff Gary Charpentier appeals from a judgment dismissing his action as to defendant Marjorie Von Geldern ¹ after the trial court granted defendant's motion for summary judgment. The primary question presented is whether a private owner of land bordering a navigable river is entitled to the protection of Civil Code section 846 when a person enters onto that land for access to the river for a recreational purpose, is injured while so using the river, and the landowner has done nothing to obstruct or impede that use. We answer in the affirmative and conclude the trial court properly granted defendant's motion for summary judgment when it was shown there were no triable issues of fact as to plaintiff's recreational purpose in entering onto defendant's land and as to the absence of willful or malicious misconduct by defendant.

The following undisputed facts have been gleaned from plaintiff's complaint and from the papers submitted on the summary judgment motion:

On August 2, 1981, defendant was the owner of approximately 51 acres of property bordering the Feather River. On that date, and unknown to defendant, plaintiff entered onto defendant's property for the purposes of swimming and diving in the Feather River. Plaintiff was an experienced diver and was aware of the potential risks of injury from diving into water and striking bottom or submerged objects. Accordingly, plaintiff first swam about in the area for 10 minutes checking for water hazards. Plaintiff and his friend then dove into the river from the bank and swam about for a few minutes without injury. Plaintiff dove into the river a second time in the vicinity of his first dive. On this dive, plaintiff struck his chin and chest on "something soft," either the sandy bottom or something "sandbar like," causing injury.

Prior to that time, defendant had not personally viewed the property, had no knowledge of the condition of the land or the bordering river, that her property was used for diving and swimming in the river, or that anyone had previously been injured while swimming or diving in the river.

In his complaint, plaintiff alleged that defendant "wilfully and maliciously failed to guard or warn against the dangerous condition of the Feather River in that it was too shallow for swimming and diving and had submerged objects," proximately causing plaintiff's injury. Defendant answered, asserting Civil Code section 846 as an affirmative defense to plaintiff's action. Defendant subsequently moved for summary judgment on the point, and the motion was granted without comment. A judgment of dismissal was entered against plaintiff, and his appeal followed.

I

The purpose of the summary judgment procedure is to discover, through appropriate supporting and opposing papers, whether the parties possess evidence requiring the weighing procedures of a trial. (Stationers Corp. v. Dun & Bradstreet, Inc., (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785.) The rules are well known. A motion for summary judgment "shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ.Proc., § 437c, subd. (c).) The issues are framed by the pleadings. (AARTS Productions, Inc. v. Crocker Nat. Bank (1986) 179 Cal.App.3d 1061, 1064, 225 Cal.Rptr. 203.) "Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue." (Stationers Corp., supra, 62 Cal.2d at p. 417, 42 Cal.Rptr. 449, 398 P.2d 785; see Corwin v. Los Angeles Newspaper Service Bureau, Inc. (1971) 4 Cal.3d 842, 851 & fn. 6, 94 Cal.Rptr. 785, 484 P.2d 953.) The moving party's papers are strictly construed and the opposing party's liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the opposing party. (Stationers Corp., supra, 62 Cal.2d at p. 417, 42 Cal.Rptr. 449, 398 P.2d 785.) In granting a summary judgment motion, the trial court is entitled to rely on all uncontradicted inferences reasonably drawn from the evidence submitted in the parties' papers. (Code Civ.Proc., § 437c, subd. (c).)

On review of a grant of a motion for summary judgment, our task is to determine the validity of the ruling as a matter of law regardless of the reasons that may have motivated the trial court. (Lombardo v. Santa Monica Young Men's Christian Assn. (1985) 169 Cal.App.3d 529, 538, fn. 4, 215 Cal.Rptr. 224.) On appeal, all intendments are in favor of the party who opposed the motion. (Slobojan v. Western Travelers Life Ins. Co. (1969) 70 Cal.2d 432, 437, 74 Cal.Rptr. 895, 450 P.2d 271.) Nevertheless, a judgment of dismissal following an order granting summary judgment will not be reversed absent an abuse of the trial court's discretion. (Rubio v. Swiridoff (1985) 165 Cal.App.3d 400, 403, 211 Cal.Rptr. 388.)

We first examine the applicable substantive law. Civil Code section 846 (hereafter § 846) establishes limited liability to a private landowner for injuries sustained by another from recreational use of the land. ² It is an exception to the general rule that a private landowner owes a duty of reasonable care to any person coming upon the land. (O'Shea v. Claude C. Wood Co. (1979) 97 Cal.App.3d 903, 908, 159 Cal.Rptr. 125; English v. Marin Mun. Water Dist. (1977) 66 Cal.App.3d 725, 731, 136 Cal.Rptr. 224. Compare Civ.Code, § 1714; Rowland v. Christian (1968) 69 Cal.2d 108, 119, 70 Cal.Rptr. 97, 443 P.2d 561.) Under section 846, the landowner's duty toward the nonpaying, uninvited recreational user is, in essence, no greater than that owed a trespasser under the common law as it was known prior to Rowland v. Christian, supra. (See Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 706, 190 Cal.Rptr. 494, 660 P.2d 1168; O'Shea v. Claude C. Wood Co., supra, 97 Cal.App.3d at pp. 910-911, 159 Cal.Rptr. 125; 38 Cal.State Bar J. (1963) 647.) The recreational trespasser on private land assumes the risk of injury, therefore, absent willful or malicious misconduct by the landowner. (See § 846.) The legislative purpose of that statute, by eliminating the threat to the landowner of gratuitous tort liability, is to encourage the landowner to keep the property accessible and open to the public for recreational use without charge. (Collins v. Tippett (1984) 156 Cal.App.3d 1017,1019-1020,- 203 Cal.Rptr. 366; O'Shea v. Claude C. Wood Co., supra, 97 Cal.App.3d at pp. 908-909,- 159 Cal.Rptr. 125; Parishish v. Lloyd (1978) 82 Cal.App.3d 785, 787-788, 147 Cal.Rptr. 431; see also Darr v. Lone Star Industries, Inc. (1979) 94Cal.App.3d 895, 903, 157 Cal.Rptr. 90[dis. opn. of [ Evans, J.]; Lostritto v. Southern Pac. Transportation Co. (1977) 73 Cal.App.3d 737, 747-749, 140 Cal.Rptr. 905.)

In Pacific Gas & Electric Co. v. Superior Court (1983) 145 Cal.App.3d 253, 193 Cal.Rptr. 336, this court reconciled the statutory objective of section 846 with the public's constitutional right to the free and unimpeded use of navigable waterways (Cal. Const., art. X, § 4). In Pacific Gas, the plaintiff was injured while boating on a navigable waterway when the boat's mast came into contact with the defendant's overhanging power lines. The lines were suspended across the water from two towers, one on each bank, plus from a pole sunk in the ground under the water midway between the two towers. The defendant owned the land over which the power lines ran and on which the towers and the pole were situated. On these facts, we concluded that the defendant was not entitled to the protection of section 846. We first held there was no "entry" or "use" of the defendant's premises, emphasizing that the plaintiff in no way disturbed or made use of the defendant's land, towers, poles, or overhanging wires in pursuit of his recreational purpose. Absent such "entry" or "use," the defendant did not fall within that category of defendants contemplated by section 846. (Id., at p. 257, 193 Cal.Rptr. 336.)

We then considered the plaintiff's alternative ground for defeating the defendant's claim of section 846 immunity--the public trust doctrine. Under article X, section 4 of the California Constitution, the plaintiff had a right to sail on the navigable waterway free of the defendant's use of its property in a manner tending to obstruct or impede that use. (Pacific Gas, supra, 145 Cal.App.3d at p. 258, 193 Cal.Rptr. 336.) We concluded that to interpret section 846 to protect the defendant when the public trust doctrine is implicated would not serve the legislative purpose of that section, because such interpretation would have the contrary effect of "discourag[ing] the public from exercising its constitutionally protected free and unimpeded use of navigable waterways." (Id., at p. 259, 193 Cal.Rptr. 336.) We determined, "The more logical interpretation of section 846 is that the Legislature did not intend to confer negligence immunity on contiguous or subjacent owners of real property fronting or underlying navigable waters vis-a-vis persons injured while using the public waterways. In light of the constitutionally derived public trust doctrine as well as the purpose of the statute, we conclude that the owner of an interest in real property underlying or adjacent to navigable waters is not entitled to the protection...