Hoffmann v. Young

• Decision Date: 30 October 2020
• Docket Number: 2d Civil No. B292539
• Court: California Court of Appeals Court of Appeals
• Parties: Mikayla HOFFMANN, a minor, etc., Plaintiff and Appellant, v. Christina M. YOUNG et al., Defendants and Respondents.

56 Cal.App.5th 1021

271 Cal.Rptr.3d 33

Mikayla HOFFMANN, a minor, etc., Plaintiff and Appellant,

v.Christina M. YOUNG et al., Defendants and Respondents.

2d Civil No. B292539

Court of Appeal, Second District, Division 6, California.

Filed October 30, 2020

Andrade Law Offices and Steven R. Andrade, Santa Barbara, for Plaintiffs and Appellants.

Horvitz & Levy, Dean A. Bochner, Burbank, and Joshua C. McDaniel ; Henderson & Borgeson, Jay M. Borgeson, Santa Barbara, and Royce J. Borgeson, for Defendants and Respondents.

YEGAN, Acting P. J.

While riding her motorcycle on a motocross track, Mikayla Hoffmann (appellant) was severely injured in a collision with another motorcycle ridden by Gunner Young (Gunner), appellant's 18-year-old friend. According to appellant's expert witness, the collision was caused by the negligent design of the track and lack of directional signs. Appellant was a minor at the time of injury but is now an adult.

The track and an adjacent residence were on property owned by Gunner's parents. Both Gunner and his parents lived there. Gunner not only invited appellant to come onto the property, he drove his truck to her house, loaded her motorcycle into the bed of the truck, and drove her to the property. There is no evidence that Gunner's parents prohibited him from inviting guests onto the property. There is some evidence that only family members were allowed to ride on the motocross track.

Appellant sued respondents (Gunner and his parents). A jury found that they had no liability for the collision or the allegedly negligent medical care provided to appellant after the collision.

Gunner's parents successfully claimed that they are immune from liability for the collision pursuant to the recreational use immunity defense of Civil Code section 846 ( section 846 ).¹ But there is an exception to this defense that applies when the injured person has been "expressly invited" onto the property "by the landowner." ( § 846, subd. (d)(3).) Appellant had been expressly invited by Gunner. We hold that where, as here, a child of the landowner is living with the landowner on the landowner's property and the landowner has consented to this living arrangement, the child's express invitation of a person to come onto the property operates as an express invitation by the landowner within the meaning of section 846, subdivision (d)(3), unless the landowner has prohibited the child from extending the invitation. Thus, Gunner's express invitation of appellant stripped his parents of the immunity that would otherwise have been provided to them by section 846.

In the trial court appellant's attorney relied upon and cited the relevant case of Calhoon v. Lewis (2000) 81 Cal.App.4th 108, 96 Cal.Rptr.2d 394 ( Calhoon ). This fell upon deaf ears and the trial court erroneously instructed the jury that the express invitation exception to the immunity defense applies only if one of Gunner's parents, i.e., the actual landowner, expressly invited appellant onto the property. The erroneous instruction struck at the heart of the case and prejudiced appellant. Moreover, the court erroneously instructed the jury that the express invitation must be for a recreational purpose. "[I]mmunity is abrogated by an [express] invitation for any purpose." ( Pacific Gas & Electric Co. v. Superior Court (2017) 10 Cal.App.5th 563, 588, 216 Cal.Rptr.3d 426.)

We therefore reverse the judgment on two causes of action as to which the jury found no liability based on the immunity defense. They are the first and second causes of action for general negligence and premises liability. In all other respects, we affirm.

Calhoon v. Lewis

Appellant contends that, pursuant to Calhoon , supra , 81 Cal.App.4th 108, 96 Cal.Rptr.2d 394, Gunner's invitation to appellant was tantamount to an express invitation from the landowner (his parents) within the meaning of section 846, subdivision (d)(3). In Calhoon the plaintiff was invited by his friend, Wade, to come over to Wade's parents’ residence where Wade lived. (The opinion does not indicate the age of plaintiff or Wade.) While waiting for Wade at the residence, plaintiff injured himself riding a skateboard on the driveway. He sued Wade's parents. The parent's defended, inter alia, on the theory that they were immune from tort liability under the immunity defense as codified in section 846.

"The trial court found [plaintiff's] claims were barred by the immunity set forth in section 846." ( Calhoon , supra , 81 Cal.App.4th at p. 113, 96 Cal.Rptr.2d 394.) The Court of Appeal disagreed. It said that Wade's invitation of plaintiff was sufficient to negate recreational use immunity. The Court of Appeal concluded that Wade's invitation "would seem to easily bring this case into [the] ... ‘expressly invited’ exception." ( Ibid . ) We find Calhoon's reasoning persuasive.

Johnson v. Unocal Corp.

Respondents argue that affirmance of the judgment is compelled by this court's decision in Johnson v. Unocal Corp. (1993) 21 Cal.App.4th 310, 26 Cal.Rptr.2d 148 (opn. of Gilbert, J., Stone, P. J., Yegan, J., concurring). We disagree. The plaintiff in Johnson was employed by Abex Corporation. Abex was given permission by Unocal Corporation to hold a picnic on Unocal's property. During the picnic, plaintiff was injured while playing a game of horseshoes. He leaned against a fence railing that collapsed. He sued Unocal. The trial court granted summary judgment in favor of Unocal on the theory of recreational use immunity as provided by section 846. Plaintiff argued that he fell within the express invitation exception to the immunity defense. We affirmed because the landowner, Unocal, did not extend to plaintiff "a direct, personal request ... to attend this picnic." ( Johnson , supra , at p. 317, 26 Cal.Rptr.2d 148.) Unlike the instant case, in Johnson there was not an express invitation from the landowner's child who was living with the landowner on the property.

Express Invitation by Landowner's Child Is Tantamount to Express Invitation by Landowner

If a person is living with his parents, must he ask his parents for permission to bring a friend onto his parents’ property? Or do his parents, by allowing him to live on the property, impliedly permit him to invite friends to the property? We use a modicum of common sense in selecting the latter alternative. Absent very unusual circumstances, such as an express order not to bring a friend to the property, it is reasonable to say that, so long as they are living together, a child may invite a guest onto the parents’ property.

We recognize that the language chosen by the Legislature says that the exception applies only to persons "expressly invited ... by the landowner" ( § 846, subd. (d)(3) ). Gunner was not the landowner. But the statute does not preclude a landowner from delegating authority to a child to invite guests onto the property for social purposes. Such a delegation creates an agency relationship. ( Channel Lumber Co. v. Porter Simon (2000) 78 Cal.App.4th 1222, 1227, 93 Cal.Rptr.2d 482.) The existence of such a delegation of authority from Gunner's parents to Gunner may be implied here. ( Borders Online v. State Board of Equalization (2005) 129 Cal.App.4th 1179, 1189, 29 Cal.Rptr.3d 176 ["An agency relationship ‘may be implied based on conduct and circumstances’ "].) Because Gunner was acting as his parents’ agent when he expressly invited appellant onto the property, the invitation is deemed to have been expressly extended by his parents, the landowner. (See Southern Pacific Co. v. Von Schmidt Dredge Co. (1897) 118 Cal. 368, 371, 50 P. 650 [" ‘ "the act of the agent, in signing the agreement in pursuance of his authority, is in law the act of the principal" ’ "].)

Our holding does not undermine the purpose of section 846, which was enacted in 1963. "The statutory goal was to constrain the growing tendency of private landowners to bar public access to their land for recreational uses out of fear of incurring tort liability. [Citations.]" ( Hubbard v. Brown (1990) 50 Cal.3d 189, 193, 266 Cal.Rptr. 491, 785 P.2d 1183.) Section 846 immunity from tort liability remains as to persons from the general public. Appellant was not a member of the general public. She was an expressly invited guest.

Trial Court's Erroneous Instruction Prejudiced Appellant

The trial court erred in instructing the jury that the express invitation exception to the immunity defense applies only if one of Gunner's parents expressly invited appellant onto the property. "In order to persuade an appellate court to overturn a jury verdict because of instructional error, an appellant must demonstrate that ‘the error was prejudicial [citation] and resulted in a "miscarriage of justice." ’ " ( Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1213, 31 Cal.Rptr.2d 776, 875 P.2d 1279.)

Respondents claim that the erroneous instruction was not prejudicial: "[Appellant] never proposed a verdict form question ... that would have allowed the jury to find that Gunner's invitation abrogated [his parents’] immunity.... Consequently, the jury was never asked to make any findings on the ‘express invitation’ issue.... Therefore, even if the jury had been instructed differently, the outcome would be no different because absent an appropriate question on the verdict form, the jury had no way of returning a verdict that the ‘express invitation’ exception abrogated [Gunner's parents’] immunity."

Respondents correctly note that the special verdict form omitted a question on the applicability of the express invitation exception to the immunity defense. The verdict form instructed the jury to find Gunner's parents not liable for the collision if appellant had entered the "property for a recreational purpose" and the parents had not "willfully or maliciously fail[ed] to protect others or willfully or maliciously fail[ed] to warn others about a dangerous condition or activity on the property."

But we cannot fault appellant for not requesting that the...