New v. Consolidated Rock Products Co.

• Decision Date: 26 August 1985
• Citation: 217 Cal.Rptr. 522,171 Cal.App.3d 681
• Parties: Richard NEW, et al., Plaintiffs, Respondents and Cross-Appellants, v. CONSOLIDATED ROCK PRODUCTS COMPANY, et al., Defendants, Appellants and Cross-Respondents. Bruce A. WILLIAMS, Plaintiff, Respondent and Cross-Appellant, v. CONSOLIDATED ROCK PRODUCTS COMPANY, et al., Defendants, Appellants and Cross-Respondents. Civ. B001217.
• Court: California Court of Appeals Court of Appeals

Page 522

217 Cal.Rptr. 522

171 Cal.App.3d 681

Richard NEW, et al., Plaintiffs, Respondents and Cross-Appellants, v. CONSOLIDATED ROCK PRODUCTS COMPANY, et al., Defendants, Appellants and Cross-Respondents.

Bruce A. WILLIAMS, Plaintiff, Respondent and Cross-Appellant, v. CONSOLIDATED ROCK PRODUCTS COMPANY, et al., Defendants, Appellants and Cross-Respondents.

Civ. B001217.

Court of Appeal, Second District, Division 5, California.

Aug. 26, 1985.

Archbald & Spray, Santa Barbara, Horvitz & Levy, Barry R. Levy and David S. Ettinger, Encino, for defendants, appellants and cross-respondents.

Ghitterman, Hourigan, Grossman, Finestone & Schumaker, Ventura, Daniel Jason Krindle, Los Angeles, and Nordman, Cormany, Hair & Compton and Glen M. Reiser, Oxnard, for plaintiffs, respondents and cross-appellants.

FEINERMAN, Presiding Justice.

Plaintiffs, Richard New and Bruce A. Williams, were injured while riding their motorcycles on the property of defendant, Consolidated Rock Products. In a pretrial ruling, the superior court held that defendant was entitled to the protection of Civil Code section 846, which immunizes landholders from liability to nonpaying recreational users of their property, except where the landholder willfully or maliciously fails to warn or guard against a dangerous condition. By way of a special verdict, the jury found that defendant had acted willfully or in conscious disregard of its duty to plaintiffs. The jury further found that plaintiff Williams had been damaged in the amount of $1,429,927.69 and that plaintiff New had been damaged in the amount of $346,506.43. The jury assessed plaintiff Williams' comparative negligence at 30 percent and plaintiff New's comparative negligence at 32 percent. Defendant's motion for new trial was denied.

Defendant appeals, contending that the jury was erroneously instructed as to defendant's duty of care under Civil Code section 846, and that expert testimony was erroneously admitted in evidence. Plaintiffs have filed a cross-appeal arguing that defendant was not entitled to the protection of Civil Code section 846 because it did not give permission to the public to use its land for recreational purposes and should have been held liable to plaintiffs for ordinary negligence. We find that there is no merit to defendant's contentions and that the cross-appeal is therefore moot.

FACTS

The incident which gave rise to the lawsuit occurred on July 23, 1977, when plaintiffs rode their motorcycles over a 20-foot cliff at defendant's gravel quarry. The quarry was located along the Santa Clara River bottom in Ventura County. Defendant posted "NO TRESPASSING" signs on its property, but they were ineffectual to deter numerous motorcyclists, who used the property on a habitual basis. The cliff plaintiffs rode over was created when defendant enlarged an excavation pit by cutting away the end of a two-lane haul road, leaving a sheer, almost perpendicular, 20-foot drop.

There was conflicting evidence introduced as to the precautions taken by defendant to warn of the danger posed by the cliff at the end of the abandoned road. Defendant claimed to have constructed two five-foot high earthen barriers or berms, 150 feet from each other, one located within 200 feet of the cliff, the other near a turnoff at the beginning of the road. Defendant also claimed that it posted numerous "NO TRESPASSING" signs around its property, including 15 in the immediate vicinity of the pit and one at the turnoff to the abandoned road. These signs read, "NO TRESPASSING QUARRY PROPERTY THIS PROPERTY MAY BE USED AT ANY TIME FOR EXCAVATION." Defendant had frequent and substantial problems with vandalism of its signs, which it attempted to remedy with a program of weekly inspection, maintenance and replacement. Defendant also hired a security guard to protect its property and to deter trespassers. The parties dispute whether the security guard was also engaged Plaintiffs' evidence was that there was but a single earthen barrier in the road, that it was only 12 inches high and 12 inches wide, that it had been constructed to prevent defendant's own large trucks from going over the cliff, and that it was covered with motorcycle tracks, leading cyclists to believe that it was a jump. Plaintiffs also introduced evidence that there were no "NO TRESPASSING" signs along the road leading to the cliff, nor any other warning signs; that the road was cut in a manner which created the optical illusion that there was no break in the continuity of the road; and that, aside from the foot-high barrier, the road was slick and fast as it proceeded over the cliff.

to warn motorcyclists of dangers on the property.

Over objection, plaintiffs were permitted to call David Royer, a traffic safety engineer, with expertise on the subject of driver reaction to highway warning signs. The essence of his testimony was that drivers, including motorcyclists, driving 25 miles an hour or more, would not be able to read more than three words on a sign, and that if defendant's "NO TRESPASSING" sign had been in place, motorcyclists would not have read beyond the word "QUARRY." Royer also testified about the type of signs and barriers which would typically be used to warn motorists that a road was about to terminate.

Defendant, also over objection, called John McKibben, an automotive engineer with extensive experience in investigating and reconstructing vehicle crashes, including those involving motorcycles. McKibben had 30 years' experience as a recreational motorcyclist, as a motorcycle racer, and as a motorcycle driving instructor. He testified that the accident scene, as depicted on a photograph of the haul road, would have conveyed to a cyclist of ordinary prudence that there was a sharp descent in the road. He further testified that five-foot earthen berms would have warned a reasonable cyclist that the road ahead was closed and that if he were going to proceed, he should do so with caution.

JURY INSTRUCTIONS

Defendant does not contest the sufficiency of the evidence. It complains that the jury was inappropriately advised of the standard of care owed by defendant under Civil Code section 846. At the time of the accident, section 846 read as follows: "An owner of any estate in real property owes no duty of care to keep the premises safe for entry or use by others for fishing, hunting, camping, water sports, hiking, spelunking, riding, including animal and all types of vehicular riding, rock collecting, or sightseeing or to give any warning of hazardous conditions, uses of, structures, or activities on such premises to persons entering for such purposes, except as provided in this section. [p] An owner of any estate in real property who gives permission to another for entry or use for the above purpose upon the premises does not thereby (a) extend any assurance that the premises are safe for such purpose, or (b) constitute the person to whom permission has been granted the legal status of an invitee or licensee to whom a duty of care is owed, or (c) assume responsibility for or incur liability for any injury to person or property caused by any act of such person to whom permission has been granted except as provided in this section. [p] 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 other than the consideration, if any, paid to said landowner by the state; or (c) to any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner. [p] Nothing in this section creates a duty of care or ground of liability for injury to person or property." ¹

Defendant complains of the following instruction: "Willful misconduct is intentional wrongful conduct done either with knowledge, express or implied, that serious injury to another will probably result or with a conscious disregard of such probable results. An intent to injure is not a necessary element of willful misconduct. [p] To prove misconduct it is not necessary to establish that the defendant recognized its conduct as dangerous. It is sufficient if it be established that a reasonable man under the same or similar circumstances would be aware of the dangerous character of such conduct." (Emphasis added.)

Defendant pejoratively contends that the emphasized portion of the instruction "allowed the jury to find Conrock liable if it had failed to exercise reasonable care in guarding or warning against the dangerous condition on its property, regardless of Conrock's actual state of mind. This was clearly a negligence standard." Defendant's gossamer argument is both factually and legally incorrect. The instruction correctly defines willful misconduct (Chappell v. Palmer (1970) 10 Cal.App.3d 71, 73, 74, 88 Cal.Rptr. 710) and does not allow the jury to substitute an ordinary negligence standard for a willful misconduct standard.

Civil Code section 846 was first enacted in 1963. At the time, California law provided that landowners owed a duty of ordinary care to invitees, but that trespassers and licensees were obliged to take the premises as they found them, and that the possessor of the land owed them only a duty of refraining from wanton and willful injury, insofar as the condition of the premises was concerned. (Rowland v. Christian (1968) 69 Cal.2d 108, 114, 70 Cal.Rptr. 97, 443 P.2d 561.) With respect to injury resulting from the active conduct of the landowner, however, case law extended a duty of ordinary care even to licensees. (Oettinger v. Stewart (1944) 24 Cal.2d 133, 138, 148 P.2d 19.) Thus, by enacting Civil Code section 846, the Legislature immunized landholders from the liability they would otherwise have incurred for ordinary negligence toward nonpaying recreational invitees,...