Domingue v. Presley of Southern California

• Decision Date: 21 January 1988
• Docket Number: No. B028134,B028134
• Citation: 243 Cal.Rptr. 312,197 Cal.App.3d 1060
• Court: California Court of Appeals
• Parties: Nicholas DOMINGUE, a Minor, etc., Plaintiff and Appellant, v. PRESLEY OF SOUTHERN CALIFORNIA, Defendant and Respondent.

Page 312

243 Cal.Rptr. 312

197 Cal.App.3d 1060

Nicholas DOMINGUE, a Minor, etc., Plaintiff and Appellant, v.PRESLEY OF SOUTHERN CALIFORNIA, Defendant and Respondent.

No. B028134.

Court of Appeal, Second District, Division 4, California.

Jan. 21, 1988.

As Modified Feb. 3, 1988.

M. Lynn Huston, West Covina, and Marvin B. Osband, Los Angeles, for plaintiff and appellant.

Woodrow D. Smith and David Keitel, Los Angeles, and Drummy, Garrett, King & Harrison, Howard F. Harrison and Michael G. Joerger, Costa Mesa, for defendant and respondent.

McCLOSKY, Acting Presiding Justice.

AppellantNicholas Domingue appeals from summary judgment entered in favor of respondent Presley of Southern California in appellant's suit for personal injury based upon premises liability and general negligence.Summary judgment was predicated on Civil Code section 846.

Appellant contends: "A.The trial court improperly determined Civil Code § 846 immunized defendant from liability to recreational user when injured on a construction project on defendant's land.B.Defendant is liable to plaintiff for willful failure to guard or warn against a dangerous condition, use or structure on defendant's land.C. Respondent/defendants[sic ] have not shown undisputed material facts entitling them to a summary judgment."

Appellant, a minor, was injured in March 1985, when he rode his bicycle off a six foot drop in a graded area of property belonging to respondent.Appellant alleged two causes of action, the first for negligence.He alleged in effect that respondent was negligent in failing to guard, fence, take reasonable precautions or warn of the dangerous condition of the area, knowing that appellant and other children rode their bicycles on the site.In his second cause of action, appellant alleged that respondent"willfully or maliciously failed to guard or warn against a dangerous condition, use, structure, or activity...."Respondent answered the complaint, raising as an affirmative defense that liability was barred by Civil Code section 846.

Respondent's motion for summary judgment was granted on the grounds that Civil Code section 846, as interpreted in Delta Farms Reclamation Dist. v. Superior Court(1983)33 Cal.3d 699, 706-708, 190 Cal.Rptr. 494, 660 P.2d 1168, provides that owners owe no duty of care to keep the premises safe for others for recreational purposes, and that appellant had failed to show willful misconduct.(CT 93; RT 3)Summary judgment is a drastic procedure which should be used with caution to avoid its becoming a substitute for trial.(Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd.(1983)147 Cal.App.3d 309, 195 Cal.Rptr. 90.)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 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. 338.)

Respondent's evidence in its motion for summary judgment, strictly construed (Sheffield v. Eli Lilly & Co.(1983)144 Cal.App.3d 583, 611, 192 Cal.Rptr. 870), showed that appellant entered the property without any express invitation from respondent to do so, that appellant paid no consideration for entry, that he entered for the purpose of riding his bicycle to his friend Curtis's house and that the reason he rode through the dirt area where the accident occurred was "[b]ecause it's a shorter way to get there, and we just go through the dirt" and that the owner had altered the property from its natural condition by grading it where the accident occurred.The site of appellant's fall was an area which had house pads and streets graded in.No building structure on the lot in question or on the lots immediately adjacent to it had yet begun on the date of the accident.

Appellant's evidence submitted in opposition to the motion, must be liberally construed.( Sheffield v. Eli Lilly & Co., supra, 144 Cal.App.3d at p. 611, 192 Cal.Rptr. 870.)So construed, it clearly raises a triable issue of material fact because it shows that the only reason appellant was on respondent's land at the time of the accident was that he was on his way to his friend Curtis's house and "[b]ecause [this was] a shorter way to get there."He so testified at pages 10 and 11 of his deposition attached to the declaration of attorney Marvin B. Osband in support of the "Opposition to Defendant's Motion For Summary Judgment[etc.]."The evidence showed that the grading at the property had resulted in construction of a dirt pad six feet high from which appellant, in the course of his trip across respondent's property, "jumped" his bicycle and fell, causing him injury.¹ Improved streets had already been built in the area.It also showed that respondent's building supervisor was in the area daily and inspected the accident site, which was neither fenced nor posted with warning signs, that appellant was never told to stay off the property by respondent, and that appellant and his friends had ridden their bicycles on the property more than 20 times before.

Section 846 of the Civil Code upon which the summary judgment in favor of defendant is predicated, provides that an owner "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 such premises" except that this section does not limit liability "(a) for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity; or (b) for injury suffered in any case where permission to enter for the above purpose was granted for a consideration ...; or (c) to any persons who are expressly invited ... to come upon the premises by the landowner."Recreational purpose, as defined by Civil Code section 846, includes "snowmobiling, and all other types of vehicular riding, ..."(Emphasis added.)

Attached as Exhibit "A" to respondentcounsel's declaration in support of respondent's "Motion For Summary Judgment/Or Alternatively For Adjudication of Issues Without Substantial Controversy" are copies of pages 11 through 14 of appellant's deposition.These are attached for the supposed purpose of showing that the minor appellant was using the respondent's land for a recreational use at the time of the accident.What those pages 11 though 14 actually show in that regard, however, is that on 20 or more occasions prior to the occasion in question plaintiff had used the land in question for recreational purposes.

It is only by reading page 10, line 19 through page 11, line 1 of that deposition, which pages were attached as an exhibit to the declaration of attorney Marvin B. Osband's declaration in support of the "Opposition to Defendant's Motion for Summary Judgment," that we read the crucial lines of the minor appellant's deposition which show that he was using respondent's land on the occasion of the accident, not for recreational purposes, but as a shortcut to get to his friend Curtis's house.Those lines read as follows:

"Q.Now, you said you were on your way to your friend Curtis' house.

"Could you have gotten to Curtis' house using paved streets?

"A.Yes.

"Q.Why did you go through the dirt area then?

"A.Because it's a shorter way to get there, and we just go through the dirt."

It is thus apparent that there was at the very least a triable issue of fact as to whether the land was being used for a recreational use at the time of the accident.This alone precluded the possibility of properly granting of a motion for summary judgment.The mere fact that the minor appellant was riding his bicycle to his friend's house does not make his trip across respondent's land on the occasion of the accident a recreational use.In Gerkin v. Santa Clara Valley Water Dist.(1979)95 Cal.App.3d 1022, 157 Cal.Rptr. 612, disapproved on other grounds inDelta Farms Reclamation Dist. v. Superior Court(1983)33 Cal.3d 699, 707, 660 P.2d 1168, plaintiff fell from a two-plank bridge while either walking or walking with her bicycle across it.Summary judgment was granted in favor of defendant on the ground that plaintiff's activity was "hiking."Held. reversed; the term refers to recreational hiking in its commonly understood meaning i.e., taking a long walk for pleasure or exercise.(Id., at p. 1027, 157 Cal.Rptr. 612.)(See4 Witkin, Summary of Cal. Law (8th ed. 1984 Supp.) Torts, § 585, p. 375.)"In 1978, the Legislature left no doubt that the immunity provided for in section 846 was aimed exclusively at sports or recreational activities by amending the statute to limit an owner's duty of due care to render the premises safe 'for any recreational purpose.'(Stats.1978, ch. 86, § 1.)'Recreational purpose' is thereafter defined as including those activities which were enumerated under the old section as well as a number of newly added ones."(95 Cal.App.3d at p. 1026, 157 Cal.Rptr. 612.)

In view of the language of Civil Code section 846we first note that not all vehicular or bicycle riding is recreational in nature.A truck driver delivering a load of lumber or plumbing fixtures to a lot in a vehicle would certainly not be engaged in a recreational use of that land merely because he was making a vehicular use of it at the time.A Western Union messenger delivering a telegram on a bicycle would not be making a recreational use of the land to which he or she delivered the telegram.The landowner would certainly not be immune from a claim for injuries by that truckdriver or that cyclist by virtue of the provisions of Civil Code section 846.

Second, "a purely literal interpretation of any part of a statute will not prevail over the purpose of the legislation.[Citation.]"(95 Cal.App.3d at p. 1027, 157 Cal.Rptr. 612.)That purpose is to encourage landowners to keep their...