Paige v. North Oaks Partners

• Decision Date: 09 August 1982
• Citation: 134 Cal.App.3d 860,184 Cal.Rptr. 867
• Parties: Lawrence Michael PAIGE et al., Plaintiffs and Appellants, v. NORTH OAKS PARTNERS et al., Defendants and Respondents. Civ. 63895.
• Court: California Court of Appeals Court of Appeals

Page 867

184 Cal.Rptr. 867

134 Cal.App.3d 860

Lawrence Michael PAIGE et al., Plaintiffs and Appellants, v. NORTH OAKS PARTNERS et al., Defendants and Respondents.

Civ. 63895.

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

Aug. 9, 1982.

Hearing Denied Oct. 13, 1982.

Albert I. Kaufman, Encino, for plaintiffs and appellants.

McGahan & Engle and Mary E. Schroeder, Ventura, for defendants and respondents.

ASHBY, Associate Justice.

In this action for personal injury, plaintiffs appeal from a summary judgment in favor of defendants.

From the pleadings and the declarations on the motion for summary judgment, the facts are as follows. Plaintiff Michael Paige (hereinafter plaintiff), age 11, sues through his guardian ad litem, his mother, Linda Paige, who also sues on her own behalf for medical expenses incurred. Defendant K & G market operates a market at premises leased from defendant North Oaks Partners, doing business as North Oaks Plaza, a retail shopping center in Thousand Oaks. In an area behind the K & G market designated as a common facility in the lease, defendant Mark Roessler dba Mark Roessler Building and Construction Company, as general contractor, was engaged in a construction project for repair and alteration of the premises. There was an open trench in the construction area. The accident occurred on Sunday, April 29, 1979; the trench had been there since Friday, April 27.

Sunday morning plaintiff, then age 10, and his friends went to the construction area on their bicycles. They played a bicycle chasing game called "stop that pidgeon," which involved attempting to tag each other while riding. They jumped over the trench on their bicycles. While chasing his friends the third time around, plaintiff came in at the wrong angle. He attempted to stop, but fell in the trench, suffering injury.

Summary judgment was granted in favor of defendants on the ground that they are immune from liability under Civil Code section 846 which provides in pertinent part: "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 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." ¹

DISCUSSION

We hold that Civil Code section 846 is not applicable in the circumstances of this case. The purpose of this statute, enacted in 1963, was to encourage owners to allow the general public to use their land for recreational purposes by relieving such owners of the tort duties which might otherwise arise from such permission. (Gerkin v. Santa Clara Valley Water Dist., 95 Cal.App.3d 1022, 1025-1027, 157 Cal.Rptr. 612; Parish v. Lloyd, 82 Cal.App.3d 785, 787-788, 147 Cal.Rptr. 431; English v. Marin Mun. Water Dist., 66 Cal.App.3d 725, 731, 136 Cal.Rptr. 224; Phillips v. United States (9th Cir. 1979) 590 F.2d 297, 299 [construing California law]; 38 State Bar J. 647 (1963); Note, Tort Liability of Agricultural Landowners to Recreational Entrants (1978) 11 U.C.Davis L.Rev. 367, 368.) The legislative policy was "to reduce the growing tendency of landowners to withdraw land from recreational access by removing the risk of gratuitous tort liability that a landowner might run unless he could successfully bar any entry to his property for enumerated recreational uses." (English v. Marin Mun. Water Dist., supra.)

In light of the purposes of the statute it is inconceivable that the Legislature intended it to apply to a case such as this one. When the statute was enacted in 1963, five years before the landmark decision in Rowland v. Christian, 69 Cal.2d 108, 118-119, 70 Cal.Rptr. 97, 443 P.2d 561, the duties of a landowner toward a person coming on the land depended upon the status of the person as invitee, licensee or trespasser. The statute directed itself to these distinctions, providing specifically that the granting of permission to use the premises for a recreational purpose did not give the entrant the legal status of invitee or licensee. However, at the time of the statute's enactment the doctrine of attractive nuisance provided an exception, where the injured person was a trespassing child, to what would otherwise be a rule of nonliability as to trespassers. (Beard v. Atchison, Topeka & Santa Fe Ry. Co., 4 Cal.App.3d 129, 135-136, 84 Cal.Rptr. 449.) In attempting to provide access for the public to open spaces for recreational use, the Legislature could not have intended to encourage owners and building contractors to allow children to play on their temporary construction projects.

The statute must be given a reasonable construction in light of its purposes. In Gerkin v. Santa Clara Valley Water Dist., supra, 95 Cal.App.3d 1022, 1025-1027, 157 Cal.Rptr. 612, the court rejected an attempt to apply the statute literally in a situation where it was not warranted. There the defendant had argued that because the plaintiff was walking across defendant's property, the plaintiff was therefore "hiking" within the meaning of the statute. The court commented that " 'it is a cardinal rule that statutes should be given a reasonable interpretation and in accordance with the apparent purpose and intention of the lawmakers,' " and that "a purely literal interpretation of any part of the statute will not prevail over the purpose of the legislation." Whether the plaintiff was hiking within the meaning of the statute, the court said, depended upon "a consideration of the totality of facts and circumstances, including the path taken, the length and purpose of the journey, the topography of the property in question, and the prior use of the land. While the plaintiff's subjective intent will not be controlling, it is relevant to show purpose." (Id., at p. 1027, 157 Cal.Rptr. 612.)

Here, although plaintiff's purpose was undoubtedly recreational, the nature of the property in question shows that it is not within the intent of section 846. We find nothing in any legislative history to suggest that the Legislature intended to relieve all landowners of liability to trespassing children, whose activities usually are recreational. The fact that the words of section 846 could constitutionally be interpreted literally so as to apply to this case (Lostritto v. Southern Pac. Transportation Co., 73 Cal.App.3d 737, 749, 140 Cal.Rptr. 905), does not mean that they should be so interpreted. A similar problem has been faced by the courts of New Jersey under their landowner immunity statute. Although the statutory language applied broadly to "premises," the court refused to apply the statute literally to a residential swimming pool in Boileau v. De Cecco, 125 N.J.Super. 263, 310 A.2d 497 (App.Div.1973), affd. 65 N.J. 234, 323 A.2d 449 (1974).) The court stated: "We cannot presume a grant of tort immunity to the owners of thousands of swimming pools in residential areas until we determine that it was the intent of the Legislature at the time of enactment of the statute to do so." (310 A.2d at p. 499.) Referring to the statute's listing of specific recreational activities, similar to the second paragraph of our Civil Code section 846, the court commented:...