Decker v. City of Imperial Beach, No. D007375

• Court: California Court of Appeals
• Writing for the Court: KREMER; NARES; WIENER
• Citation: 209 Cal.App.3d 349,257 Cal.Rptr. 356
• Parties: Glenn A. DECKER, Plaintiff and Appellant, v. CITY OF IMPERIAL BEACH, Defendant and Respondent.
• Decision Date: 04 April 1989
• Docket Number: No. D007375

Page 356

257 Cal.Rptr. 356 209 Cal.App.3d 349 Glenn A. DECKER, Plaintiff and Appellant,
v.
CITY OF IMPERIAL BEACH, Defendant and Respondent. No. D007375. Court of Appeal, Fourth District, Division 1, California. April 4, 1989.

[209 Cal.App.3d 352]

Page 357

Schall, Boudreau & Gore, W. Lee Hill and Robert J. Trentacosta, San Diego, for plaintiff and appellant.

Hollywood & Neil and Anton C. Gerschler, San Diego, for defendant and respondent.

KREMER, Presiding Justice.

Glenn A. Decker appeals a summary judgment in favor of the City of Imperial Beach on his complaint for the wrongful death of his son, Gary Decker. On appeal, Decker contends the court erred in finding Imperial Beach was immune from liability because the death arose out of Gary's participation in a "hazardous recreational activity" and in finding no "special relationship" existed between Gary and Imperial Beach. We conclude the trial court properly granted summary judgment and therefore affirm.

FACTS

Around 5:30 p.m. on March 15, 1984, Gary and his friend Victor Hewitt went surfing off the 1600 block of Seacoast Drive in Imperial Beach. There were no life guard services provided at this beach during the non-summer months. Soon after Gary entered the water, Gary's surfboard leash became entangled in a nylon rope tether connecting a submerged lobster trap to a small floating surface buoy.

Bystanders noticed Gary appeared to be in trouble. They contacted Hewitt and called the County Sheriff's Department. Hewitt twice attempted to paddle out to Gary on his surfboard to render assistance, but was unable to reach him. The Sheriff's Department, which provided law enforcement support to Imperial Beach, called the City of Imperial Beach Fire Department to assist at the scene. Both agencies responded to the beach. ¹ An announcement by bullhorn was made to Gary, telling him "help [was] on the way."

An Imperial Beach fire fighter, Olin Golden, who was a water safety instructor and life guard, contacted Hewitt about the situation and [209 Cal.App.3d 353] borrowed Hewitt's wetsuit and surfboard. Imperial Beach Fire Chief Ronald Johnston ordered Hewitt and Golden and all other would-be rescuers to remain on the beach and not to attempt a rescue.

At about 6:45 p.m., an ASTREA helicopter arrived and hovered over Gary for 15 to 20 minutes, shining a bright light on him. Eventually, a helicopter rescue was rejected. The Sheriff's dive team attempted to rescue Gary by tying a rope around one diver's waist and anchoring him to the shore while he waded into the surf. There was evidence that this was an antiquated method of surf rescue that has been abandoned because it is ineffective. Shortly

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after this rescue attempt, Gary's surf leash became disentangled and he floated to shore, unconscious. All attempts to revive him failed. He was pronounced dead at U.C.S.D. Medical Center. DISCUSSION I

Summary Judgment Standard

The aim of the summary judgment procedure is to discover whether the parties possess evidence requiring the fact-weighing procedures of a trial. (Chern v. Bank of America (1976) 15 Cal.3d 866, 873, 127 Cal.Rptr. 110, 544 P.2d 1310; Corwin v. Los Angeles Newspaper Service Bureau, Inc. (1971) 4 Cal.3d 842, 851, 94 Cal.Rptr. 785, 484 P.2d 953.) "[T]he trial court in ruling on a motion for summary judgment is merely to determine whether such issues of fact exist, and not to decide the merits of the issues themselves." (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.) In reviewing the propriety of a summary judgment, the appellate court must resolve all doubts in favor of the party opposing the judgment. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 183, 203 Cal.Rptr. 626, 681 P.2d 893.) The reviewing court conducts a de novo examination to see whether there are any genuine issues of material fact or whether the moving party is entitled to summary judgment as a matter of law. (Lichty v. Sickels (1983) 149 Cal.App.3d 696, 699, 197 Cal.Rptr. 137.) While "[s]ummary judgment is a drastic procedure, should be used with caution [citation] and should be granted only if there is no issue of triable fact" (Brose v. Union-Tribune Publishing Co. (1986) 183 Cal.App.3d 1079, 1081, 228 Cal.Rptr. 620), it is also true "[j]ustice requires that a defendant be as much entitled to be rid of an unmeritorious lawsuit as a plaintiff is entitled to maintain a good one." (Larsen v. Johannes (1970) 7 Cal.App.3d 491, 507, 86 Cal.Rptr. 744.) "A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action [209 Cal.App.3d 354] can prevail. [Citation.]" (Molko v. Holy Spirit Assn., supra, 46 Cal.3d at p. 1107, 252 Cal.Rptr. 122, 762 P.2d 46.)

II

Hazardous Recreational Activities Immunity

Imperial Beach argues it has no liability for Gary's death because it arose out of Gary's participation in a "hazardous recreational activity."

GOVERNMENT CODE SECTION 831.7² provides a public entity is not "liable to any person who participates in a hazardous recreational activity ... for any damage or injury to property or persons arising out of that hazardous recreational activity." Surfing is specifically included as a "hazardous recreational activity." ( § 831.7, subd. (b)(3).)

Decker argues section 831.7 does not bar his suit because Gary's death was not "solely attributable" to surfing but was also due to Imperial Beach's conduct during the rescue and section 831.7 provides immunity only for injuries caused by the hazardous recreational activity itself.

" 'The fundamental rule of statutory construction is that the court should ascertain the intent of the Legislature so as to effectuate the purpose of the law. [Citations.]' " (T.M. Cobb Co. v. Superior Court (1984) 36 Cal.3d 273, 277, 204 Cal.Rptr. 143, 682 P.2d 338.) "In determining such intent, the court turns first to the words of the statute." (Regents of University of California v. Public Employment Relations Bd. (1986) 41 Cal.3d 601, 607, 224 Cal.Rptr. 631, 715 P.2d 590.) The court attempts to give effect to the usual, ordinary import of the language and seeks to avoid making any language mere surplusage. (Fontana Unified School Dist. v. Burman (1988) 45 Cal.3d 208, 219, 246 Cal.Rptr. 733, 753 P.2d 689.) The words must be construed in context in light of the nature and obvious purpose of the statute where they appear. (Palos Verdes Faculty

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Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal.3d 650, 658-659, 147 Cal.Rptr. 359, 580 P.2d 1155.) The various parts of a statutory enactment must be harmonized in context of the statutory framework as a whole. (Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230-231, 110 Cal.Rptr. 144, 514 P.2d 1224; Long Beach Police Officers Assn. v. City of Long Beach (1988) 46 Cal.3d 736, 746, 250 Cal.Rptr. 869, 759 P.2d 504.) The statute "... must be given a reasonable and commonsense interpretation consistent with the apparent purpose and intention of the Legislature, practical rather than technical in nature, and which, when [209 Cal.App.3d 355] applied, will result in wise policy rather than mischief or absurdity. [Citations.]" (Beaty v. Imperial Irrigation Dist. (1986) 186 Cal.App.3d 897, 902, 231 Cal.Rptr. 128; see also Webster v. Superior Court (1988) 46 Cal.3d 338, 344, 250 Cal.Rptr. 268, 758 P.2d 596.)

In defining the scope of the hazardous recreational activities immunity, the Legislature did not choose narrow language; the Legislature did not limit the immunity to injuries "solely attributable" to the hazardous recreational activity. Instead, the Legislature used expansive language to describe the scope of the immunity, stating it applied to "any damage or injury to property or persons arising out of that hazardous recreational activity." (Emphasis added.) This broad language is reasonably susceptible to an interpretation that it was intended to preclude liability for negligently inflicted injuries while rescuing a person who has been participating in a hazardous recreational activity since it can be said the rescue effort "arises out of" the individual's participation in the hazardous recreational activity.

Such an interpretation--that the immunity extends to rescue efforts, a foreseeable result of participating in a hazardous recreational activity--is consistent with the statutory scheme. Section 831.7 contains a number of exceptions to the rule of immunity. Subdivision (c) of section 831.7 provides:

"Notwithstanding the provisions of subdivision (a), this section does not limit liability which would otherwise exist for any of the following:

"(1) Failure of the public entity or employee to guard or warn of a known dangerous condition or of another hazardous recreational activity known to the public entity or employee that is not reasonably assumed by the participant as inherently a part of the hazardous recreational activity out of which the damage or injury arose.

"(2) Damage or injury suffered in any case where permission to participate in the hazardous recreational activity was granted for a specific fee. For the purpose of this paragraph, a 'specific fee' does not include a fee or consideration charged for a general purpose such as a general park admission charge, a vehicle entry or parking fee, or an administrative or group use application or permit fee, as distinguished from a specific fee charged for participation in the specific hazardous recreational activity out of which the damage or injury arose.

"(3) Injury suffered to the extent proximately caused by the negligent failure of the public entity or public employee to properly construct or maintain in good repair any structure, recreational equipment or machinery, or substantial work of improvement utilized in the hazardous recreational activity out of which the damage or injury arose.

[209 Cal.App.3d 356] "(4) Damage or injury suffered...