Gerkin v. Santa Clara Valley Water Dist.

• Decision Date: 17 August 1979
• Court: California Court of Appeals Court of Appeals
• Parties: Jo Ann GERKIN, Plaintiff and Appellant, v. SANTA CLARA VALLEY WATER DISTRICT et al., Defendants and Respondents. Civ. 44620.

Page 612

157 Cal.Rptr. 612

95 Cal.App.3d 1022

Jo Ann GERKIN, Plaintiff and Appellant, v. SANTA CLARA VALLEY WATER DISTRICT et al., Defendants and Respondents.

Civ. 44620.

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

Aug. 17, 1979.

Everett P. Rowe, Bostwick & Rowe, San Jose, for plaintiff and appellant.

Neal A. Cabrinha, Mallen & Cabrinha, Saratoga, for respondent Santa Clara Valley Water District.

Lariviere, Dickerson & Wickler by Robert K. Wickler, San Jose, for respondents Tony Talerico and Elizabeth Talerico.

Popelka, Allard, McCowan & Jones by Bruce Nye, San Jose, for respondents Carl Salmi and Lela Salmi.

Hoge, Fenton, Jones & Appel, Inc. by H. R. Lloyd, Jr., San Jose, for respondents Cosmo D. Perrotta and Ernesta I. Perrotta.

CHRISTIAN, Associate Justice.

Jo Ann Gerkin through her guardian ad litem, Elza Gerkin, appeals from a summary judgment in her action against Santa Clara Valley Water District and other defendants for personal injuries.

Appellant suffered personal injuries when she fell from a bridge located at "Little Llagas Creek" in the City of Morgan Hill. Respondents were alleged to have "operated, maintained, controlled, inspected, repaired, funded, owned and had easement rights" to that portion of Little Llagas Creek over which the bridge crossed. According to the complaint, appellant was injured as a proximate result of the conduct of respondents who had negligently permitted the bridge to remain in a dangerous condition. Respondents denied liability.

Respondents moved for summary judgment on the ground of immunity from liability provided for in Civil Code section 846. ¹

In support of the motion respondents presented excerpts from the depositions of appellant and her younger sister showing that appellant was either walking or walking with her bicycle across the two planks which constituted the bridge when she slipped and fell into a dry creek below.

In opposition to the motions, appellant submitted the declarations of herself, her mother and her sister averring that (1) on the date in question there was no telephone at the apartment where appellant was living, (2) appellant's mother gave appellant and her sister permission to cross the area in order to use the telephone at a market and to buy a candy bar there, (3) appellant's purpose in making the trip was to make a phone call and buy a candy bar, and (4) appellant walked across the bridge with her bicycle both to and from the store; at no time did she ride the bicycle.

The court granted the motions for summary judgment on the ground that appellant "was engaged in conduct specified by Civil Code Section 846" at the time of the accident and that respondents were therefore "entitled to judgment as a matter of law."

Section 846 provides that, in the absence of willful or malicious failure to guard or warn of a dangerous condition, an owner of "any estate in real property" owes no duty of care to keep the premises safe for entry by trespassers or licensees who engage in certain specified recreational activities. Included among these specified activities are "hiking" and "riding." Appellant was walking over the bridge when the accident occurred. Relying on dictionary definitions of "to hike" as "to walk or tramp" and "to go for a long walk," respondents argue that appellant's activity was encompassed within the statute and that summary judgment was therefore proper. It is contended that any test which hinges upon the user's subjective "recreational" intent would read into section 846 a requirement not stated by the Legislature and lead to "diverse, arbitrary and unjust results."

Section 846 must be construed in light of the legislative purpose behind it. "It is a cardinal rule that statutes should be given a reasonable interpretation and in accordance with the apparent purpose and intention of the law makers. Such intention controls if it can be reasonably ascertained from the language used." (County of Alameda v. Kuchel (1948) 32 Cal.2d 193, 199, 195 P.2d 17, 20.) The purpose of section 846 was to encourage landowners to keep their property open to the public for recreational activities by limiting their liability for injuries sustained in the course of those activities. (Parish v. Lloyd (1978) 82 Cal.App.3d 785, 788, 147 Cal.Rptr. 431; Lostritto v. Southern Pac. Transportation Co. (1977) 73 Cal.App.3d 737, 749, 140 Cal.Rptr. 905; English v. Marin Mun. Water Dist. (1977) 66 Cal.App.3d 725, 731, 136 Cal.Rptr. 224.) Respondents are therefore incorrect when they contend that to walk across their property necessarily constitutes "hiking" within the meaning of the statute. Both the language and the historical background of section 846 compel the conclusion that the Legislature did not intend to immunize landowners from liability for All permissive or nonpermissive use of their properties, but only those uses which could justifiably be characterized as "recreational" in nature.

As originally enacted in 1963, section 846 granted property owners qualified immunity from liability for injuries connected with "taking of fish and game, camping, water sports, hiking or sightseeing." (Stats.1963, c. 1759, § 1, p. 3511.) The Legislature amended the statute on four subsequent occasions between 1970 and 1976 to clarify and include additional recreational uses. As the court noted in English v. Marin Mun. Water Dist., supra : "These amendments are indicative of a legislative policy to reduce the growing tendency of landowners to withdraw land from recreational access by removing the risk of gratuitous tort liability that a landowner might run unless he could successfully bar any entry to his property for enumerated recreational uses." (66 Cal.App.3d at p. 731, 136 Cal.Rptr. at p. 228.)

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, c. 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.

Respondents' contention that "walking" falls within the scope of " hiking" under section 846 is contrary to two principles of statutory construction:

First, a construction which implies that words used by the Legislature were superfluous is to be avoided wherever possible. "(I)t is presumed that every work, phrase and provision employed in a statute was intended to have some meaning and to perform some useful office (citation)." (Prager v. Isreal (1940) 15 Cal.2d 89, 93, 98 P.2d 729, 731.) If "hiking" were to be read as including the act of "walking," it would have been unnecessary for the Legislature to enumerate other types of activities which necessarily involve walking such as camping, rock collecting and hunting. Obviously, "hiking" was intended to denote more than just traveling on foot.

Second, a purely literal interpretation of any part of a statute will not prevail over the purpose of the legislation. (In re Kernan (1966) 242 Cal.App.2d 488, 491, 51 Cal.Rptr. 515; J. T. Jenkins Co. v. County of Los Angeles (1960) 178 Cal.App.2d 379, 383-384, 2 Cal.Rptr. 852.) This principle is vividly illustrated by that portion of section 846 which, at the time...