Shipman v. Boething Treeland Farms, Inc.

• Decision Date: 07 February 2000
• Docket Number: No. B126426.,B126426.
• Citation: 92 Cal.Rptr.2d 566,77 Cal. App. 4th 1424
• Court: California Court of Appeals
• Parties: Trent SHIPMAN, Plaintiff and Appellant, v. BOETHING TREELAND FARMS, INC., et al., Defendants, Cross-complainants and Respondents, Roberto Tamayo Martinez, Defendant, Cross-Complainant and Appellant.

92 Cal.Rptr.2d 566

77 Cal.App.4th 1424

Trent SHIPMAN, Plaintiff and Appellant, v. BOETHING TREELAND FARMS, INC., et al., Defendants, Cross-complainants and Respondents Roberto Tamayo Martinez, Defendant, Cross-Complainant and Appellant.

No. B126426.

Court of Appeal, Second District, Div. VI.

February 7, 2000.

As Modified March 2, 2000.

Review Denied May 17, 2000.^*

Sherman, Salkow, Petoyan & Weber, Arthur Sherman, Beverly Hills; Jonathan K. Golden, Los Angeles, for Plaintiff and Appellant Trent Shipman.

Liebman & Reiner, John Reiner, Los Angeles, Joseph R. Zamora, Santa Monica,

for Defendant, Cross-complainant and Appellant Roberto Tamayo Martinez.

David M. Humiston, Rebecca R. Weinreich and Douglas J. Collodel, Los Angeles, for Defendants, Cross-complainants and Respondents Boething Treeland Farms, Inc. and Boething Family Trust.

GILBERT, P.J.

Plaintiff, a trespasser, drives his all-terrain vehicle (ATV) on private property owned by defendants. His vehicle collides with one driven by defendants' employee. Plaintiffs cause of action against defendants alleges, among other things, negligent operation of a motor vehicle and premises liability.

Here we conclude that the immunity provisions of Civil Code section 846 apply to defendants.¹

Trent Shipman, through his guardian ad litem, appeals from the summary judgment granted respondents Boething Treeland Farms, Inc. and the Boething Family Trust (Boething) and Boething's employee, Roberto Tamayo Martinez. Martinez filed a protective cross-appeal against Boething. We affirm.

FACTS

When Shipman was 16 years old, he drove his ATV on the dirt road of Boething's tree farm to look at a pond. He was not invited onto the property, he did not pay to enter the property and his use was recreational.

Early in the day, Martinez suffered an injury to his eye while working as a waterer for Boething. Around midday, Martinez obtained permission to retrieve his belongings and to leave work early. While driving on the Boething property to retrieve his belongings, Martinez's station wagon struck Shipman's ATV at an intersection obstructed by trees, injuring Shipman and his passenger, Jennifer Dunbar.²

Shipman sued Boething and Martinez for negligent operation of a motor vehicle and premises liability, among other defenses. Boething and Martinez answered and cross-complained against each other seeking declaratory relief indemnity and contribution, among other things. Boething and Martinez filed motions for summary judgment asserting that section 846 provides immunity from suits seeking damages for injuries suffered during recreational use of private property.

The trial court granted the motions for summary judgment and found moot Martinez's motion for summary adjudication concerning whether he acted within the course and scope of work when the accident occurred.

Shipman appeals from the summary judgments. As a protective measure, Martinez cross-appeals from the summary judgment granted Boething and from the finding that his motion for summary adjudication against Boething is moot.

DISCUSSION

Shipman's Appeal Section 8-6 and Driving

We independently review motions for summary judgment to determine whether there is a triable issue of material fact and whether the moving party is entitled to judgment as a matter of law. (Buss v. Superior Court (1997) 16 Cal.4th 35, 60, 65 Cal.Rptr.2d 366, 939 P.2d 766; Romano v. Rockwell Internal, Inc. (1996) 14 Cal.4th 479, 486-487, 59 Cal.Rptr.2d 20, 926 P.2d 1114.) The material facts are undisputed here. The issue is whether Boething and Martinez are entitled to summary judgment under section 846 as a matter of law.

Section 846 provides, in pertinent part, "An owner of ... 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. [¶] A `recreational purpose,' as used in this section, includes such activities as ... riding, including ... snowmobiling, and all other types of vehicular riding, ... sightseeing, ... and viewing or enjoying ... scenic, natural ... sites."

Shipman opines that the protection afforded private landowners by section 846 is limited to dangers presented by the premises per se; that it does not extend to dangers presented by drivers of vehicles. We disagree.

The protection afforded landowners under section 846 "is extremely broad." (Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1105, 17 Cal.Rptr.2d 594, 847 P.2d 560.) The Legislature has established only "two elements as a precondition to immunity: (1) the defendant must be the owner of an `estate ... in real property ...'; and (2) the plaintiffs injury must result from the `entry or use [of the "premises"] for any recreational purpose.'" (Id,, at p. 1100, 17 Cal.Rptr.2d 594, 847 P.2d 560.) Thus, California courts focus on whether a plaintiff has taken "advantage of the recreational opportunities offered by the property." (Id,, at pp. 1100, 1102, 17 Cal.Rptr.2d 594, 847 P.2d 560.)

In Ornelas, a minor was injured by a falling pipe while playing on old farm equipment on private land. Section 846 barred the minor's suit against the landowner. The court said, "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 (1968) 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." (Ornelas v. Randolph, supra, 4 Cal.4th at p. 1100, 17 Cal.Rptr.2d 594, 847 P.2d 560.)

In Kirkpatrick v. Damianakes (1936) 15 Cal.App.2d 446, 59 P.2d 556, a commercial trucker hit a car while backing up to a loading platform in a private alley. The trucker was a business invitee. (Id., at p. 449, 59 P.2d 556.) The owner of the car "entered upon the property of another without right and without any express or implied invitation or permission. She was not in the performance of any duty to the owner or tenants nor was she upon any business with the owner or tenants. She was driving for her own purposes and her own convenience and was given no express or implied assurance of safety from anyone when entering upon said private alley." (Ibid.) As such, she "'... occupies the status of trespasser....."' (Ibid.) "It is therefore clear that the only duty of the owner or tenant of the property was to abstain from willfully or wantonly injuring plaintiff." (Ibid.) The trucker "stood in the same position as the owner or tenants toward persons who were trespassers," such as the driver of the car. (Ibid.) Kirkpatrick held that it was error to instruct the jury that "the parties each owed to the other the duty of exercising ordinary care." (Id,, at p. 451, 59 P.2d 556.) The trucker owed no duty of due care to the injured car driver.

When an uninvited, nonpaying recreational user becomes injured on private land, section 846 bars recovery. (Ornelas v. Randolph, supra, 4 Cal.4th at p. 1100, 17 Cal.Rptr.2d 594, 847 P.2d 560.) The definition of "recreational purpose" in section 846 is so extensive it includes nearly any leisure activity. "`[I]t obviously encompasses [activities on] improved streets.'" (Id., at pp. 1101, 1105, 17 Cal. Rptr.2d 594, 847 P.2d 560; accord Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 706-707, 190 Cal.Rptr. 494, 660 P.2d 1168.) Indeed, section 846 expressly includes riding vehicles for the purpose of sightseeing on private land, as here. Even though section 846 does not specifically mention ATV's, it is beyond purview that driving an ATV is a recreational activity within the meaning of section 846. (See Ornelas, supra, at pp. 1100-1101, 17 Cal.Rptr.2d 594, 847 P.2d 560; and see generally, Valladares v. Stone (1990) 218 Cal.App.3d 362, 368-369, 267 Cal.Rptr. 57.)

Accordingly, defendants did not owe Shipman the duty to use due care. (Ornelas v. Randolph, supra, 4 Cal.4th at p. 1100, 17 Cal.Rptr.2d 594, 847 P.2d 560; Kirkpatrick v. Damianakes, supra, 15 Cal. App.2d at pp. 449, 451, 59 P.2d 556; and see generally, Hubbard v. Brown (1990) 50 Cal.3d 189, 266 Cal.Rptr. 491, 785 P.2d 1183 [upheld summary judgment for the defendant landowner where plaintiff was injured riding his motorcycle into a barbed wire fence]; Myers v. Atchison, Topeka & Santa Fe Railway Co. (1990) 224 Cal. App.3d 752, 760-761, & 761, fn. 2, 274 Cal.Rptr. 122 [riding motorcycle into ditch near railroad tracks deemed recreational activity even though trains may pass. Court expressly declined, however, to state whether section 846 would apply if motorcycle accident involved train]; Parish v. Lloyd (1978) 82 Cal.App.3d 785, 147 Cal. Rptr. 431 [upheld summary judgment granted defendant landowner where plaintiff was killed riding his motorcycle into a ravine].)

Shipman misplaces his reliance on inapposite cases of sister states. (Scott v. Wright (1992) 486 N.W.2d 40; Young v. Salt Lake City Corporation (1994) 876 P.2d 376.) In Scott, defendants invited a girl to attend a party on their private property. The girl became injured on a hayride when defendants' son-in-law lost control of the tractor pulling the hay wagon. The girl sued defendants on a theory of vicarious liability for the son-in-law's negligent operation of the tractor. The Iowa recreational immunity statute does not define recreational activities to include riding vehicles. (Scott, supra, at p. 42.) The Iowa Supreme Court held that its recreational immunity statute did not preclude the suit because "[t]he public's incentive to enter and enjoy private agricultural land would be greatly diminished...." (Ibid.)

By contrast, section 846 expressly includes riding vehicles and our Supreme Court has explained that "[t]he public policy balance achieved by [section 846] is clear: landowners are...