Ornelas v. Randolph, No. S027366

• Decision Date: 15 March 1993
• Docket Number: No. S027366
• Parties: , 847 P.2d 560 Jose ORNELAS, a Minor, etc., Plaintiff and Appellant, v. Clinton RANDOLPH, Defendant and Respondent
• Court: California Supreme Court

Page 594

17 Cal.Rptr.2d 594

4 Cal.4th 1095, 847 P.2d 560

Jose ORNELAS, a Minor, etc., Plaintiff and Appellant, v. Clinton RANDOLPH, Defendant and Respondent.

No. S027366.

Supreme Court of California

March 15, 1993.

Bauman & Rose, Ann Bryce Cushing, Elva Gonzalez Funes and Elke Gordon Schardt, for plaintiff and appellant.

Mills, Lane & Derryberry, George M. Stevens, Jr., Fresno, and David F. Boettcher, Sacramento, for defendant and respondent.

Ronald A. Zumbrun, Anthony T. Caso, Alan W. Foutz, Nancy N. McDonough and Carolyn S. Richardson, Sacramento, as amici curiae on behalf of defendant and respondent.

ARABIAN, Justice.

The State of California is blessed with an abundance of scenic treasures. Its natural landscape contains over 1,100 miles of Pacific shoreline, massive mountains, magnificent lakes and sweeping deserts. Such diversity and contrast lend to its appeal as a place where recreational pursuits may flourish, at times on realty owned by others.

We granted review in this case to resolve a long-standing controversy over the scope of Civil Code section 846, which immunizes private landowners from liability for injuries sustained by recreational users of their property. We conclude, under settled principles of statutory construction, that the Legislature intended the statutory immunity to include all private property, and defined "recreational purpose" so broadly as to apply to plaintiff's conduct here. Accordingly, we shall reverse the judgment of the Court of Appeal.

FACTS

The farms of California's heartland extend some 465 miles through the center of the State. Defendant Clinton Randolph (defendant) owns a large parcel of property in the City of Delano in Kern County. One part of the property is plowed and furrowed for crops. Another part contains a small rental house. A third portion consists of an open area where defendant stores old farm equipment, machinery and irrigation pipes. Defendant's property lies adjacent to a residential subdivision where plaintiff Jose Ornelas (plaintiff), who was eight years old at the time in question, lived with his family.

On January 2, 1989, plaintiff, together with five other children, was playing on that portion of the property where the farm equipment was stored. Several of the children were on top of a piece of old machinery when a metal pipe dislodged and fell on plaintiff, causing injuries. Plaintiff was not on the equipment at the time, but was sitting nearby playing with a hand-held toy when the accident occurred. ¹ Plaintiff's mother had cautioned him several times prior to the accident not to play on defendant's property.

Plaintiff, acting by and through his guardian ad litem Rita Ornelas (plaintiff's mother), filed a complaint for personal injury against defendant. Defendant answered and, following discovery, moved for summary judgment on several grounds including Civil Code section 846 (section 846) immunity. The trial court granted summary judgment in favor of defendant on that basis. However, the Court of Appeal reversed, holding that section 846 was inapplicable because that portion of the land used to store defendant's equipment "had no legitimate recreational use."

DISCUSSION

1. The Statutory Elements

Section 846 establishes limited liability on the part of a private landowner for injuries sustained by another from recreational use of the land. ² The statute provides an exception from the general rule that a private landowner owes a duty of reasonable care to any person coming upon the land. (Rowland v. Christian (1968) 69 Cal.2d 108, 119, 70 Cal.Rptr. 97, 443 P.2d 561; Valladares v. Stone (1990) 218 Cal.App.3d 362, 366, 267 Cal.Rptr. 57; Charpentier v. Von Geldern (1987) 191 Cal.App.3d 101, 107, 236 Cal.Rptr. 233; English v. Marin Mun. Water Dist. (1977) 66 Cal.App.3d 725, 731, 136 Cal.Rptr. 224.) Under section 846, an owner of any estate or other interest in real property owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give recreational users warning of hazards on the property, unless: (1) the landowner willfully or maliciously fails to guard or warn against a dangerous condition, use, structure or activity; (2) permission to enter for a recreational purpose is granted for a consideration; or (3) the landowner expressly invites rather than merely permits the user to come upon the premises. The landowner's duty to the nonpaying, uninvited recreational user is, in essence, that owed a trespasser under the common law as it existed prior to Rowland v. Christian, supra, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561; i.e., absent willful or malicious misconduct the landowner is immune from liability for ordinary negligence. (See Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 706, 190 Cal.Rptr. 494, 660 P.2d 1168; Charpentier v. Von Geldern, supra, 191 Cal.App.3d at p. 108, 236 Cal.Rptr. 233; New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681, 688, 217 Cal.Rptr. 522.) ³

Thus, the Legislature has established two elements as a precondition to immunity: (1) the defendant must be the owner of an "estate or any other interest in real property, whether possessory or nonpossessory;" and (2) the plaintiff's injury must result from the "entry or use [of the 'premises'] for any recreational purpose." (§ 846.)

2. Recreational Purpose ⁴

Turning first to the "recreational" element of section 846, we have little difficulty in upholding the trial court's implicit finding that plaintiff entered or used defendant's property for a recreational purpose within the meaning of the statute. Section 846 currently provides that 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." ⁵

Plaintiff does not contend that the list of activities set forth in section 846 is exhaustive; nor indeed would the plain language of the statute support such a claim. The statutory definition of "recreational purpose" begins with the word "includes," ordinarily a term of enlargement rather than limitation. (People v. Western Air Lines, Inc. (1954) 42 Cal.2d 621, 639, 268 P.2d 723; 2A Sutherland, Statutory Construction (4th ed. 1973) § 47.07, pp. 81-82.) To be sure, the principle of ejusdem generis provides that "when a statute contains a list or catalogue of items, a court should determine the meaning of each by reference to the others, giving preference to an interpretation that uniformly treats items similar in nature and scope. [Citations.]" (Moore v. California State Board of Accountancy (1992) 2 Cal.4th 999, 1011-1012, 9 Cal.Rptr.2d 358, 831 P.2d 798.) The examples included in section 846, however, do not appear to share any unifying trait which would serve to restrict the meaning of the phrase "recreational purpose." They range from risky activities enjoyed by the hardy few (e.g., spelunking, sport parachuting, hang gliding) to more sedentary pursuits amenable to almost anyone (e.g., rock collecting, sightseeing, picnicking). Some require a large tract of open space (e.g., hunting) while others can be performed in a more limited setting (e.g., recreational gardening, viewing historical, archaeological, scenic, natural and scientific sites). Moreover, as discussed more fully in the section which follows, the statute draws no distinction between natural and artificial conditions; "it specifically mentions 'structures'--it obviously encompasses improved streets." (Delta Farms Reclamation Dist. v. Superior Court, supra, 33 Cal.3d at pp. 706-707, 190 Cal.Rptr. 494, 660 P.2d 1168.) Thus, it is not limited to activities which take place outdoors, and does not exclude recreational activities involving artificial structures.

Accordingly, because the list of examples provided by the Legislature does not effectively limit the meaning of "recreational purpose," we conclude that entering and using defendant's property to play on his farm equipment invokes the immunity provisions of section 846. As noted, a "recreational" injury may result as readily from playing on a manmade object as on a natural edifice. Therefore, for our purposes here, clambering about on farm equipment is no different in kind from scaling a cliff or climbing a tree. (See Valladares v. Stone, supra, 218 Cal.App.3d at p. 369, 267 Cal.Rptr. 57.) Each is clearly recreational in nature.

Plaintiff contends, however, that he raised a triable issue as to whether he entered the property to play on the equipment, or merely accompanied the other children for unspecified reasons. 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 plaintiff's 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, 157 Cal.Rptr. 612.) The record here discloses that plaintiff was injured while he was sitting on the ground, playing with a hand-held toy. He testified that just prior to the accident he had declined an invitation to climb on the equipment with the other children because he was "tired from playing." The record also disclosed that children had previously played on the equipment, and that plaintiff's mother had warned him several times not to play on defendant's property.

In these circumstances, whether plaintiff entered the property to play on the equipment, or merely accompanied the other children at...