English v. Marin Mun. Water Dist.

• Court: California Court of Appeals
• Writing for the Court: GOOD; DRAPER, P.J., and DEVINE
• Citation: 136 Cal.Rptr. 224,66 Cal.App.3d 725
• Parties: William ENGLISH, Plaintiff and Appellant, v. MARIN MUNICIPAL WATER DISTRICT, etc., et al., Defendants and Respondents. Civ. 38797.
• Decision Date: 02 February 1977

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136 Cal.Rptr. 224 66 Cal.App.3d 725 William ENGLISH, Plaintiff and Appellant,
v.
MARIN MUNICIPAL WATER DISTRICT, etc., et al., Defendants and Respondents. Civ. 38797. Court of Appeal, First District, Division 3, California. Feb. 2, 1977.

[66 Cal.App.3d 727]

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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

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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 [66 Cal.App.3d 728] 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 [66 Cal.App.3d 729] 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

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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...