Myers v. Atchison, Topeka & Santa Fe Railway Co., G007151

Citation224 Cal.App.3d 752,274 Cal.Rptr. 122
Decision Date15 October 1990
Docket NumberNo. G007151,G007151
PartiesLaura Ann MYERS, Plaintiff and Appellant, v. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, et al., Defendants and Respondents.
CourtCalifornia Court of Appeals
OPINION

MOORE, Acting Presiding Justice.

Plaintiff Laura Ann Myers was injured when she fell off a motorcycle driven by defendant Steven Zaharoff on property maintained and controlled by defendant Atchison, Topeka and Santa Fe Railway Company (Santa Fe). Myers sued alleging Santa Fe negligently or wilfully maintained a drainage culvert on its property and failed to warn others of the dangerous condition, and Zaharoff negligently operated the motorcycle. After a jury trial, judgment was entered for both defendants. On appeal, Myers contends the lower court made several erroneous rulings regarding the application and effect of Civil Code section 846 1 and challenges the sufficiency of the evidence to support the jury's finding Zaharoff was not negligent.

I FACTS

On April 27, 1985, Myers, her boyfriend, and her younger sister went to a street overpass to watch an air show being put on at a nearby military installation. The overpass spanned a railroad right-of-way, running in a generally north-south direction, that was maintained and controlled by Santa Fe. While there, Myers met several friends from her place of employment. One co-employee present was Zaharoff who arrived at the overpass by motorcycle.

Over the next few hours, Zaharoff took Myers on two motorcycle rides along Santa Fe's right-of-way. Zaharoff reached the right-of-way by taking a path down an embankment. The right-of-way was not enclosed by a fence and neither Myers nor Zaharoff saw any "No Trespassing" signs.

The first ride was uneventful. Both Myers and Zaharoff saw people riding motorcycles and other vehicles along Santa Fe's right-of-way.

A short time later, Zaharoff took Myers for a second motorcycle ride southbound primarily along the right-of-way's shoulder. After driving two or three miles, Zaharoff reversed course and began returning to the overpass. During the return trip, Zaharoff drove approximately 20 to 25 miles per hour along the roadbed's eastside shoulder midway between the rock ballast for the tracks and the underbrush growing parallel to it. The motorcycle fell into a ditch created by the drainage culvert running perpendicular to and underneath the tracks. Myers was either thrown or fell off the motorcycle and suffered injuries giving rise to this lawsuit.

Zaharoff testified he first saw the ditch 75 to 100 feet before reaching it but thought it was only a small dip in the path. Fifteen to twenty feet from the ditch, he realized it was much deeper, but did not have time to maneuver around it. He told Myers to "hang on."

Myers's accident reconstruction expert testified a motorcycle driver could not see the ditch until he was within 75 feet of it. At 25 miles per hour, a driver would not have sufficient reaction time to avoid the ditch. A witness residing next to Santa Fe's right-of-way with prior motorcycle experience retraced Zaharoff's path immediately after the accident. She also concluded the ditch could not be seen until a cyclist was too close to stop. The defense introduced a photograph depicting a pathway skirting around the ditch. Zaharoff denied seeing the pathway on the day of the accident.

Conflicting testimony was introduced concerning the purpose for the second motorcycle ride. Initially, Myers testified she went with Zaharoff to get something to drink for herself and her sister. Later, Myers testified she also took the ride to learn how to drive a motorcycle and to try to make her boyfriend jealous. Santa Fe introduced prior statements by Myers admitting the second trip was recreational, that she did not believe they were going to any particular place, and that she could not recall driving Zaharoff's motorcycle.

Zaharoff testified he only asked Myers if she wanted to go for another ride, denied they were looking for a place to get something to drink or eat, and never heard Myers say she was thirsty. However, Myers introduced a prior statement by Zaharoff where he admitted one reason for the second trip was to get something to eat. Zaharoff also claimed Myers did not ask him how to operate the motorcycle, nor did he show her how to do so.

Four Santa Fe employees responsible for the maintenance of the right-of-way testified at trial. All four stated Santa Fe has a policy of asking trespassers on its rights-of-way to leave the premises to protect them from being struck by fast-moving trains. Santa Fe also erects "No Trespassing" signs along its rights-of-way. However, Santa Fe does not fence the rights-of-way because it would be too expensive and impractical.

Nonetheless, the employees acknowledged persons use the rights-of-way to jog and for other activities, and stated they enforced the company's policy in different ways. Two employees testified they would Santa Fe's division manager stated the company had agreements with some municipalities creating bicycle trails along its rights-of-way, but none was located where Myers' accident occurred. In addition, a witness living adjacent to the accident site testified the right-of-way was used by children, bicyclists, and, on the average, at least one motorcyclist a month.

order a jogger, [224 Cal.App.3d 757] cyclist, or other person off a right-of-way if he or she was on the tracks. A third employee stated he chased people off if they were too close to the tracks. He considered the portion of the shoulder where Zaharoff was driving the motorcycle to be dangerous.

At trial, Santa Fe requested the court to instruct the jury on the recreational use immunity provided by section 846. Myers objected, arguing it would not comport with the statute's purpose and Santa Fe's property is not the type that should be given limited immunity. The court granted Santa Fe's request relying on Colvin v. Southern Cal. Edison Co. (1987) 194 Cal.App.3d 1306, 240 Cal.Rptr. 142. In addition, it submitted a special verdict prepared by Santa Fe. Question number one of the special verdict asked: "At the time of her accident, was plaintiff on the property of [Santa Fe] for a recreational purpose?"

The court also agreed to give Myers's instruction A which stated as follows: "The fact that LAURA ANN MYERS was 'riding' on the back of a motorcycle does not mean that this was a recreational purpose. Whether she was 'riding' within the meaning of the [statute] depends on the totality of facts and circumstances presented in this case, including the path taken, the length and purpose of the journey, and any prior use of the land. While her subjective intent will not be controlling, it is relevant to show purpose." However, the court inadvertently failed to read the instruction to the jury. During closing argument, counsel for both Myers and Santa Fe referred to the omitted instruction. Myers's attorney also quoted part of it.

Subsequently, the jury returned a special verdict unanimously finding Myers was on Santa Fe's property for a recreational purpose, Santa Fe did not wilfully or maliciously fail to guard her or warn of a dangerous condition, and Zaharoff did not negligently operate the motorcycle. Based on the special verdict, the court entered judgment for both defendants. This appeal followed.

II DISCUSSION

1. Application of section 846

Myers challenges the lower court's application of section 846 to this case on three grounds. First, she contends Santa Fe's right-of-way is not suitable for recreational use. Second, Myers argues the court erred by failing to permit the jury to determine the question of whether the premises were suitable for recreational purposes. Third, she claims Santa Fe's failure to record the notice specified in section 813 precludes it from receiving limited immunity under section 846.

With certain exceptions not relevant here, section 846 states, "An owner of an 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." The phrase "recreational purpose" includes "such activities as ... riding, including ... all ... types of vehicular riding...."

"Section 846 was enacted to encourage property owners to allow the general public to engage in recreational activities free of charge on privately owned property. [Citation.] 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. [Citation.]" (Hubbard v. Brown (1990) 50 Cal.3d 189, 193, 266 Cal.Rptr. 491, 785 P.2d 1183. See also Vallardares v. Stone (1990) 218 Cal.App.3d 362, 367, 267 Cal.Rptr. 57; Paige v. North Oaks Partners (1982) 134 Cal.App.3d 860, 863, 184 Cal.Rptr. 867; Parish v. Lloyd When interpreting section 846, a court must give it a reasonable interpretation and application in accord with the statute's purpose and the intent of the Legislature. A purely literal interpretation of the statute will not prevail over the purpose of the legislation. (Potts v. Halsted Financial Corp. (1983) 142 Cal.App.3d 727, 730, 191 Cal.Rptr. 160; Paige v. North Oaks Partners, supra, 134 Cal.App.3d at p. 863, 184 Cal.Rptr. 867; Gerkin v. Santa Clara Valley Water Dist. (1979) 95 Cal.App.3d 1022, 1027, 157 Cal.Rptr. 612 (...

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