Loeb v. Cnty. of San Diego

• Decision Date: 19 November 2019
• Docket Number: D074347
• Citation: 255 Cal.Rptr.3d 860,43 Cal.App.5th 421
• Court: California Court of Appeals Court of Appeals
• Parties: Sally LOEB, Plaintiff and Appellant, v. COUNTY OF SAN DIEGO, Defendant and Respondent.

43 Cal.App.5th 421

255 Cal.Rptr.3d 860

Sally LOEB, Plaintiff and Appellant,

v.COUNTY OF SAN DIEGO, Defendant and Respondent.

D074347

Court of Appeal, Fourth District, Division 1, California.

Filed November 19, 2019

Gilleon Law Firm, Daniel M. Gilleon, James C. Mitchell, San Diego; Law Offices of Brian R. Riley, Brian R. Riley, San Diego; Niddrie Addams Fuller Singh and Rupa G. Singh for Plaintiff and Appellant.

Thomas E. Montgomery, County Counsel, David L. Brodie, Chief Deputy County Counsel, and Laura E. Dolan, Deputy County Counsel, for Defendant and Respondent.

ORDER CERTIFYING OPINION FOR PUBLICATION

HALLER, Acting P. J. Sally Loeb sued the County of San Diego (County) for personal injuries she allegedly sustained when she tripped on an uneven concrete pathway in a County park. The County filed successive motions for summary judgment (an initial motion, and a renewed motion based on new evidence) based on its "trail immunity" defense, which provides absolute immunity to public entities for injuries sustained on public trails that provide access to, or are used for, recreational activities. ( Gov. Code, § 831.4.)¹ The trial court denied the County's motions, finding disputed facts existed regarding whether the pathway was used for recreational purposes. But when Loeb conceded during argument over the proposed special verdict forms that the pathway was used, at least in part, for recreational purposes, the trial court granted a nonsuit in the County's favor.

Loeb contends the trial court erred procedurally and substantively. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Pleadings

Loeb sued the County alleging that on July 22, 2015, she sustained personal injuries when she tripped on an uneven concrete pathway in the County-owned Guajome Regional Park (the Park). Her operative first amended complaint asserted causes of action for dangerous condition of property (§ 835) and violation of mandatory duties (§ 815.6).²

The County filed an answer asserting trail immunity as an affirmative defense.

The County's Initial Summary Judgment Motion

The County moved for summary judgment based on, among other things, its trail immunity defense. The County submitted evidence showing the pathway is in "a county regional park designated for hiking, fishing, and camping," and "provides access to the restrooms, the adjacent camp grounds ..., and the inner areas of the park for hiking, fishing, and other recreational activities."

Loeb opposed the County's motion, arguing triable issues of fact existed regarding whether the pathway constituted a trail for purposes of immunity. Loeb explained she was injured while using the pathway to walk to the restroom from a barbecue at her daughter's campsite. She cited evidence showing the pathway "is adjacent to a paved roadway" and serves only to connect that roadway (including a handicapped parking stall) to a handicapped-accessible restroom. She also cited County construction plans for the Park that identify the pathway as "Accessible Concrete Walks to Restroom." Loeb thus maintained "the sole purpose of the sidewalk is to provide an accessible concrete walk to th[e] restroom."

The trial court (Judge Robert Dahlquist) denied the County's motion, finding a triable issue of fact existed as to whether the pathway constituted a trail for purposes of trail immunity because "a trier of fact could conclude that the trail at issue was designed and used for a recreational purpose or that the trail simply provided a route for pedestrians to walk to the restrooms." (Italics added.)

The County's Renewed Summary Judgment Motion

About nine months after the trial court denied its first summary judgment motion, the County filed a renewed motion "on the grounds that new evidence demonstrates that the pathway at issue was a dual purpose trail subject to trail immunity." The County conceded the pathway was used to access the restrooms, but it also argued that further discovery uncovered "new evidence [that] conclusively establishes that the pathway was also used regularly by park visitors to engage in recreational activities." This evidence included photographs taken by a recently installed wildlife camera, which "captured numerous images of park visitors walking their dogs, running, and riding bikes on the subject pathway." A County official swore in a declaration that the pathway had been similarly used at the time of Loeb's incident. The County also cited Loeb's expert's deposition testimony acknowledging that "the pathway at issue is used by park visitors for ‘riding bicycles, skateboards, strollers, [and] walking dogs.’ " Finally, the County cited elements of the Park's Master Plan "show[ing] that all of the pedestrian pathways were intended to link activities within the park together rather than be used for a single purpose."

Loeb opposed the County's renewed motion. First, she disputed the County's evidence that the pathway "is sometimes used by people engaged in recreational activities." She maintained that the "handful of photographs showing park visitors using the pathways" apparently for recreational activities "do not indicate whether the individuals shown were in fact engaged in ‘recreation’ ... or were simply on their way to or from the bathroom." Second, although she acknowledged that a pathway's "use may be pertinent ..., the key issue is whether the pathway was designed for recreational use or access." (First italics added.) Loeb emphasized that the County's construction plans showed that the pathway "was developed for the sole purpose of providing an accessible pedestrian walkway to a restroom," and "the County can produce no evidence indicating it was designed for recreational access or use." (Bolding and italics omitted, underlining added.) In light of the claim that the pathway was initially designed for a nonrecreational purpose, Loeb argued it was legally inconsequential that the pathway later took on a dual use that included recreation.

The trial court (Judge Ronald Frazier, who presided over the remainder of the relevant proceedings) denied the County's motion as to trail immunity for two reasons: (1) it was untimely, and (2) the County "failed to provide a satisfactory explanation for the failure to produce that evidence at an earlier time (i.e., specifically referring to the wildlife camera photos and Master Plan)." The court added that even if it were to consider the County's new evidence, the court would find a material factual dispute because the court was "still persuaded that more than one conclusion is possible relating to the trail/sidewalk"—"a trier of fact could conclude that the trail at issue was designed and used for a recreational purpose or that the trail simply provided a route for pedestrians to walk to the restrooms."

The Nonsuit

Pretrial proceedings involving the parties' competing motions in limine, jury instructions, and proposed verdict forms eventually culminated in the trial court granting a nonsuit in favor of the County.

Motions in Limine

Loeb moved in limine to exclude photographs taken by a wildlife camera installed in the Park after Loeb's accident. The County explained that "the photographs ... demonstrate that people were using ... the pathway for recreational activities, and [the County has] a witness who could testify that that is how the pathway was used ... before the incident, at the time of, and after." The trial court ruled the photographs were admissible, finding them "highly probative" in "establishing that [the pathway] was for purposes of recreational use."

The County moved in limine to exclude expert testimony about "[w]hether the walkway [at issue] ... is a trail" for purposes of trail immunity. The County had no objection to Loeb offering testimony about how people used the pathway; it only objected to testimony on the legal question of what the pathway is.

This prompted extensive argument about the legal criteria for determining whether a pathway constitutes a trail for purposes of trail immunity. Loeb argued immunity arose only if the County established the pathway "was designed and used for [a] recreational purpose." (Italics added.) Loeb reminded the court that both it and Judge Dahlquist had "already made that ruling" in the context of summary judgment. The County responded that design and intent were irrelevant—its burden "is to just demonstrate this pathway was used for [a] recreational purpose[ ] and to access recreational activities." (Italics added.)

As part of these discussions, the trial court confirmed with Loeb that the essence of her expert's testimony would be that the pathway is not a trail because it is paved. Based on that clarification, the trial court granted the motion to exclude Loeb's expert, noting that for purposes of immunity, the "case law clearly says it doesn't matter if [a pathway is] paved or not." The court did not resolve the deeper legal issue regarding the design/use distinction.

Jury Instructions and Special Verdict Forms

The next day, the trial court selected and pre-instructed the jury.

Outside the jury's presence, the trial court addressed the conflicting approaches taken in the parties' proposed special verdict forms. Loeb's proposal addressed issues from a plaintiff's perspective—progressing through the elements establishing liability, then raising the trail immunity defense. As to the defense, Loeb proposed the following special verdict language:

"8. Was Sally Loeb using the property where the dangerous condition existed for the purpose of accessing fishing, hunting, camping, hiking, riding ..., water sports, recreational or scenic areas?"³

The County, on the other hand, proposed in its special verdict form that the jury decide the immunity issue "right off the bat," which, if found applicable, would obviate the need to make findings regarding the elements of Loeb's claim. The critical question in the County's proposed verdict form reads as follows: "1. Was the sidewalk where Sally Loeb fell used by anyone...