English v. Marin Mun. Water Dist.

Citation136 Cal.Rptr. 224,66 Cal.App.3d 725
CourtCalifornia Court of Appeals
Decision Date02 February 1977
PartiesWilliam ENGLISH, Plaintiff and Appellant, v. MARIN MUNICIPAL WATER DISTRICT, etc., et al., Defendants and Respondents. Civ. 38797.

Colin C. Claxon, Claxon & Anthony, San Rafael, for plaintiff and appellant.

Stephen F. O'Neill, San Francisco, for defendant and respondent Marin Municipal Water District.

Connolly, Hothem & Flint, San Francisco, for defendant and respondent Boise Cascade Corp.; James L. English, San Francisco, of counsel.

GOOD, Associate Justice. *

Appellant William English sued respondents Marin Municipal Water District and Pacific Cascade Land Company, Inc., for injuries sustained when appellant was riding his motorcycle uphill on a path or trail across Cascade's and onto the District's property. At the crest of a hill and at or near the common boundary there was a 25-foot precipice which the complaint characterized as 'the trap at the top of the hill.' This was the result of an excavation made in grading a level area to accommodate a large water tank. The complaint charged that respondents knew or were chargeable with knowledge that numerous cyclists used the trail for recreational purposes and that the hazard was such that the landowners had a duty to provide some 'notice, fencing, or other protective device' to warn cyclists of the danger of propelling themselves over the sudden drop. On discovery, appellant admitted he had entered respondents' properties for recreation; that neither respondent had expressly invited him to enter; that he had paid no money or other consideration for his use of the property; and, that the failure of respondents to take precautionary or warning measures was neither wilful nor malicious.

Respondents filed simultaneous motions for summary judgment contending that Civil Code section 846 1 precluded recovery because it relieved them of any duty to keep their premises safe for recreational riding or to give warning of any hazard in such use. The motions were granted and judgment was entered accordingly. Upon appeal therefrom, appellant contends that said section 846 has been abrogated by the Supreme Court's decision in Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561. For the following reasons, we are of the opinion that the contention is unsound.

Civil Code section 846 was enacted in 1963. It declared that a landowner had no duty to keep his premises safe for named recreational entry or use or to warn against hazards thereon even where permission was given unless, independently of its terms, the owner was otherwise liable (a) for wilful or malicious failure to guard or warn against a hazard; (b) where the injured user had directly paid a consideration to such owner for the entry; or (c) where the user had been expressly invited rather than merely permitted by the owner to enter the premises. In view of his answers to interrogatories, appellant has never contended that his claim of liability is predicated upon any of these exceptions. Until the promulgation of Rowland in 1968, a landowner's duties and liabilities toward persons injured upon his land was generally dependent upon the latter's status as trespasser, licensee or invitee determined under traditional common law concepts which we need not here review. Rowland discarded these distinctions in status as the prime factor determining a landowner's liability because they constituted a departure from the 'fundamental rule' established in 1872 by Civil Code section 1714 2 which could not be justified except by statute or the existence of public policy considerations to support it. (69 Cal.2d at 112, 70 Cal.Rptr. 97, 443 P.2d 561.) With some emphasis upon the subtleties, complexity and confusion that had developed in California case law because of the common law rules, the Supreme Court concluded that the rules 'obscure rather than illuminate the proper considerations which should govern determination of (a landowner's) duty' and, in changed social and economic conditions, were no longer supported by public policy. (69 Cal.2d at 118, 70 Cal.Rptr. at 104, 443 P.2d at 568.) At page 119, 70 Cal.Rptr. at page 104, 443 P.2d at page 568, the court ruled: 'The proper test to be applied to the liability of the possessor of land in accordance with section 1714 of the Civil Code is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others, and, although the plaintiff's status as a trespasser, licensee, or invitee may in the light of the facts giving rise to such status have some bearing on the question of liability, the status is not determinative.'

The existence of section 846 as a statutory exception to section 1714 was not discussed by the Rowland court. Section 846 deals with specific recreational uses and was not remotely within the factual scope of a case involving injuries sustained by a guest in the bathroom of an apartment rented by a defendant when a porcelain faucet shattered his hand. However, appellant contends that, in the light of Rowland's holding and rationale, section 846 is in conflict with modern tort law because it requires a determination of the circumstances of an injured person's entry and the purpose thereof and thus, Post Rowland, serves to perpetuate discarded common law classifications as determinative of a landowner's liability.

But in Rowland, the court made it clear that only the common law rules of immunity were under consideration. It said that 'continued adherence to the common law distinctions can only lead to injustice or, if we are to avoid injustice, further fictions with the resulting complexity and confusion.' (69 Cal.2d at p. 119, 70 Cal.Rptr. at p. 104, 443 P.2d at p. 568.) Also, the court recognized two alternative methods of creating exceptions to section 1714: first, legislative enactment; and, second, common law rules supported by clear public policy. The fact that the court found the common law esceptions that were a departure from the fundamental rule of section 1714 were no longer supported by public policy has nothing to do with the validity of the statutory exception provided by section 846. The sequences in Rowland that might buttress appellant's argument (passages referring to 'modern social mores and humanitarian values' (p. 118, 70 Cal.Rptr. p. 104, 443 P.2d p. 568), 'industrialized urban society' vis-a-vis 'a heritage of feudualism' (p. 116, 70 Cal.Rptr. 97, 443 P.2d 561), etc.) are all addressed to the issue that was there under consideration, i.e., did public policy presently support the traditional common law distinctions as an exception to section 1714.

Under the fundamental doctrine of the separation of powers, restated in 1972 in ARTICLE III, SECTION 3 OF THE CALIFORNIA CONSTITUTION3, a statute is not subject to objection on the ground that it contravenes public policy. As a legislative enactment it becomes public policy. The judicial branch does not have power to abrogate or invalidate legislation unless it is clearly shown that it is violative of one or more provisions of the Constitutions of California or the United States (People v. Globe Grain & Mill. Co. (1930) 211 Cal. 121, 127, 294 P. 3; Lockard v. City of Los Angeles (1949) 33 Cal.2d 453, 461--462, 202 P.2d 38; City of Bakersfield v. Miller (1966) 64 Cal.2d 93, 100, 48 Cal.Rptr. 889, 410 P.2d 393, cert. den. 384 U.S. 988, 86 S.Ct. 1890, 16 L.Ed.2d 1005.) Further, the judicial power is limited to adjudication of the...

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    ...366, 267 Cal.Rptr. 57; Charpentier v. Von Geldern (1987) 191 Cal.App.3d 101, 107, 236 Cal.Rptr. 233; English v. Marin Mun. Water Dist. (1977) 66 Cal.App.3d 725, 731, 136 Cal.Rptr. 224.) Under section 846, an owner of any estate or other interest in real property owes no duty of care to keep......
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