Jackson v. Pacific Gas & Electric Co.

• Decision Date: 26 December 2001
• Docket Number: No. A091784.,A091784.
• Citation: 114 Cal.Rptr.2d 831,94 Cal.App.4th 1110
• Court: California Court of Appeals Court of Appeals
• Parties: Joshua JACKSON, a Minor, etc., Plaintiff and Appellant, v. PACIFIC GAS & ELECTRIC COMPANY, Defendant and Respondent.

114 Cal.Rptr.2d 831

94 Cal.App.4th 1110

Joshua JACKSON, a Minor, etc., Plaintiff and Appellant, v. PACIFIC GAS & ELECTRIC COMPANY, Defendant and Respondent.

No. A091784.

Court of Appeal, First District, Division 3.

December 26, 2001.

Certified for Partial Publication.^*

As Modified January 7, 2002.

As Modified on Denial of Rehearing January 24, 2002.

Review Denied April 17, 2002.^**

Timothy M. Smith, Evan Eickmeyer, McKinley & Smith, Sacramento, for Appellant.

Steven P. Burke, Kirk C. Jenkins, Sedgwick, Detert, Moran & Arnold, San Francisco, for Respondent.

PARRILLI, J.

In this appeal, we consider whether Civil Code section 846 ¹ immunity precludes suit by a child who suffered injuries when he attempted to retrieve his kite from an overhead power line. We determine the utility is immune from suit under these circumstances and none of the statutory exceptions applies. Further, we conclude Public Utilities Code section 2106 does not abrogate the immunity afforded a utility by section 846. We therefore affirm the entry of summary judgment.

BACKGROUND

On April 4, 1998, ten-year-old Joshua Jackson was playing video games at the home of his friend, Dominic Portera. Dominic's mother, Laura Portera, suggested the boys go outside and fly Joshua's new kite, and they did so. But while Joshua stood in the Portera's backyard flying his kite, the wind blew the kite out of his hands and carried it over the adjoining property of Eve Prince (Laura Portera's mother). There, the kite became entangled in a power line owned by respondent Pacific Gas & Electric Company (PG & E). Joshua, Dominic and Dominic's younger sister Natalie ran onto the Prince property. Ms. Prince was not home at the time. After an unsuccessful attempt to reach the kite with a branch, Joshua tried to dislodge it using an aluminum pole the children found nearby. The pole touched the electrical line, causing Joshua serious physical injury.

Through his guardian ad litem, Joshua sued PG & E for negligence and negligence per se. The trial court granted PG & E's motion for summary judgment on the ground that section 846 barred the action. The court further denied Joshua's motion for reconsideration and entered judgment in favor of PG & E. This appeal followed.

DISCUSSION

"Summary judgment is proper only if there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. proc., § 437c, subd. (c).) A court must `strictly construe the moving party's papers and liberally construe those of the opposing party to determine if they raise a triable issue of material fact.' [Citation.]" (Calhoon v. Lewis (2000) 81 Cal.App.4th 108, 112, 96 Cal.Rptr.2d 394.) On appeal, "we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. [Citation.]" (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334, 100 Cal.Rptr.2d 352, 8 P.3d 1089.)

I. Section 846 Immunity Applies

The recreational use immunity statute, codified in section 846, creates an exception to the general rule of Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal. Rptr. 97, 443 P.2d 561 that a private landowner owes a duty of reasonable care to any person coming onto the land. (Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1099, 17 Cal.Rptr.2d 594, 847 P.2d 560.) Portions of section 846 relevant to this appeal provide:

"An owner of any estate or any other interest in real property, whether possessory or nonpossessory, 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 to persons entering for such purpose, except as provided in this section.

"A `recreational purpose,' as used in this section, includes such activities as fishing, hunting, camping, water sports, hiking, spelunking, sport parachuting, riding, including animal riding, snowmobiling, and all other types of vehicular riding, rock collecting, sightseeing, picnicking, nature study, nature contacting, recreational gardening, gleaning, hang gliding, winter sports, and viewing or enjoying historical, archaeological, scenic, natural, or scientific sites.

.....

"This section does not limit the liability which otherwise exists (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 rather than merely permitted to come upon the premises by the landowner."

A. Retrieving Kite Is a "Recreational Use" of Property

Joshua argues PG & E does not enjoy immunity under section 846 because he did not enter its property for a "recreational purpose." He flew his kite on the Portera property and only entered the Prince property (and PG & E's easement) to retrieve the kite after it blew out of his hands. Since retrieving a lost item is not generally considered "recreation," Joshua contends the recreational use immunity statute does not apply, or the recreational nature of his activity was a factual issue precluding summary judgment.

Section 846 describes a wide range of recreational activities giving rise to immunity. Indeed, the Legislature has amended section 846 several times since its enactment in 1963 to broaden the range of activities included within the statute's definition of a "recreational purpose." (Ornelas v. Randolph, supra, 4 Cal.4th at pp. 1100-1101, fn. 5, 17 Cal. Rptr.2d 594, 847 P.2d 560.) Kite flying is indisputably a recreational activity, and, consistent with section 846's broad language, we conclude the steps a kite-flyer takes to retrieve his wayward kite are included in the statutory definition of recreation. A kite-flyer trusts his instrument to the whims and fancies of the wind—that is the joy of the sport. But in doing so, he takes a risk that the wind will blow the kite in an unintended direction or to an undesired location. Given the nature of the activity, we do not agree with Joshua that recreation stops the moment a kite leaves the flyer's control.

Still, Joshua insists summary judgment was improper because the existence of "recreational purpose" under section 846 is a question of fact. "Generally, whether one has entered property for a recreational purpose within the meaning of the statute is a question of fact, to be determined through a consideration of the `totality of the facts and circumstances, including ... the prior use of the land. While the plaintiffs subjective intent will not be controlling, it is relevant to show purpose.' (Gerkin v. Santa Clara Valley Water Dist. (1979) 95 Cal.App.3d 1022, 1027 .)" (Ornelas v. Randolph, supra, 4 Cal.4th at p. 1102, 17 Cal.Rptr.2d 594, 847 P.2d 560.) However, the relevant facts here are not in dispute. Joshua went outside to fly a kite, at one point the kite blew out of Joshua's hands and became entangled in lines above the neighbor's property, and Joshua and his friends tried to retrieve it. An issue may exist as to whether Joshua intended to continue flying the kite after he recovered it, but this question is immaterial. (See Ornelas v. Randolph, supra, at p. 1102, 17 Cal.Rptr.2d 594, 847 P.2d 560.) As in Ornelas, Joshua's presence on the PG & E easement was "occasioned by" his recreational activity (see ibid.);² therefore, the recreational use immunity statute applies.

B. Express Invitation Exception Inapplicable To Plaintiffs Claims

In general, section 846 provides owners of any interest in land, possessory or nonpossessory, with immunity from tort liability for injuries sustained in the recreational use of that land. (Hubbard v. Brown (1990) 50 Cal.3d 189, 193-195, 266 Cal.Rptr. 491, 785 P.2d 1183.) However, the statute does not limit liability "to any persons who are expressly invited rather than merely permitted" to enter a property. (§ 846.) This "express invitation" exception requires a direct, personal request from the landowner to the invitee to enter the property (Johnson v. Unocal Corp. (1993) 21 Cal.App.4th 310, 317, 26 Cal.Rptr.2d 148; Ravell v. United States (9th Cir.1994) 22 F.3d 960, 963), although the invitation need not be for the specific purpose of engaging in recreation. (Calhoon v. Lewis, supra, 81 Cal.App.4th at pp. 114-115, 96 Cal.Rptr.2d 394.)

Joshua contends summary judgment under section 846 was improper because Laura Portera expressly invited him to play on the adjoining Prince and Portera properties. He offered evidence below showing Ms. Portera had the authority to invite children onto the Prince property in her mother's absence. PG & E disagreed that this evidence established an "express invitation" under section 846, as opposed to mere permission. In any event, PG & E argued, an invitation from Ms. Portera was irrelevant because only an invitation from PG & E could abrogate the utility's immunity under section 846. The trial court relied largely on PG & E's second argument in granting summary judgment, stating: "Even if the plaintiff had demonstrated an express invitation from the owner of the underlying property, no such third party invitation will abrogate PG & E's immunity pursuant to Civil Code § 846."

While her son and Joshua were inside playing, Laura Portera told them, "look, it's nice outside. Why don't you go outside and play?" The boys then decided to go out and fly Joshua's new kite. Ms. Portera testified that the boys routinely played on her property and her mother's adjoining property and never needed to ask permission from her or Ms. Prince. Ms. Portera also submitted a declaration in opposition to PG & E's motion for summary judgment, explaining that she was responsible for supervising the Prince property in her mother's absence and she had Ms. Prince's authority to invite children to play on this...