Swann v. Olivier

• Decision Date: 23 February 1994
• Docket Number: No. G012612,G012612
• Citation: 22 Cal.App.4th 1324,28 Cal.Rptr.2d 23
• Parties: Curtis SWANN, Plaintiff and Appellant, v. Paul OLIVIER, et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

Page 23

28 Cal.Rptr.2d 23

22 Cal.App.4th 1324

Curtis SWANN, Plaintiff and Appellant, v. Paul OLIVIER, et al., Defendants and Respondents.

No. G012612.

Court of Appeal, Fourth District, Division 3, California.

Feb. 23, 1994.

Certified for Partial Publication. ^*

[22 Cal.App.4th 1325] Robert J. Filippi, San Jose, for plaintiff and appellant.

[22 Cal.App.4th 1326] Nyman, Johnson, Maguire and Dyer, Thomas G. Chambers, Santa Ana, and Smith, Smith & Kring, Russell R. Arens, Long Beach, for defendants and respondents.

OPINION

SILLS, Presiding Justice.

The hazards that lurk beneath the surface of the Pacific Ocean just offshore from the private beach owned by the Cyprus Shore Community Association in San Clemente include riptides, submerged rocks and a hazardous drop-off. A friend of a guest at a beach party was badly injured in that surf and brought this lawsuit against the association and the homeowner who allowed the beach party to take place, charging them with failing to warn him of these hazards. ¹

We affirm the summary judgment in favor of the association. The owners of a private beach do not own or control the ocean, and they are not responsible for injuries that take place in that ocean. "A defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess, or control." (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134, 211 Cal.Rptr. 356, 695 P.2d 653.)

FACTS

The Cyprus Shore Community Association owns a stretch of beach in San Clemente and allows members of certain residential communities along the beach to use it. One of these communities is Cypress Pointe. Paul and Madeline Olivier are members of Cypress Pointe. Sometime in July 1990 Paul Olivier invited an acquaintance, Julie Beauchat, to use the private beach facilities for a birthday party she was giving.

Julie invited all the guests, and the group met first at her brother-in-law's house in the morning. Curtis Swann was not among the invited guests, nor was he present at this time. Julie did not know Swann, but he was a friend of another guest and arrived later offering to drive two of the girls present to the beach party. Julie and the other adults were uncomfortable with this suggestion, and instead included him with the others in the van which they rode to the beach in.

Madeline Olivier escorted the group down to the beach. Later that day Swann was injured. As we explain in detail in the unpublished portion of our opinion, Swann has admitted that he was injured in the "surf" of the public ocean, seaward of the mean high tide line that marks the border of Cyprus Shore's private property. (See Civil Code section 830 [property bordering on tidewater only extends to "ordinary high-water mark"].)

There is a provision in Cyprus Shore's rules and regulations which cautions residents and guests that there is no lifeguard on duty at Cyprus Shore and "swimming" is thus "at [their] own risk." The rules and regulations also mention that parents should watch children carefully because at "certain times of the year rip currents occur along the beach."

DISCUSSION

I ^**

II

Charpentier v. Von Geldern (1987) 191 Cal.App.3d 101, 236 Cal.Rptr. 233 presents facts superficially similar to the one at bar. In Charpentier, the defendant owned 51 acres of property "bordering the Feather River." (Id. at p. 105, 236 Cal.Rptr. 233, emphasis added.) The plaintiff "trespassed upon the land in pursuit of a recreational purpose--swimming and diving in the river." (Id. at p. 111, 236 Cal.Rptr. 233.) After first testing the waters, plaintiff climbed onto the bank, and "from the bank" dove into the river and injured himself when he hit something which resembled a sandbar. He later sued the landowner for "maliciously" failing to warn against the dangerous conditions of the Feather River. (Id. at p. 106, 236 Cal.Rptr. 233.)

The Court of Appeal affirmed a summary judgment in favor of the landowner, holding that Civil Code section 846 ³ immunized her from liability. Civil Code section 846 addresses the liability of landowners for the recreational use of their land by others. (See generally Charpentier, supra, 191 Cal.App.3d at p. 108, 236 Cal.Rptr. 233.) The statute first creates an immunity by providing that a landowner "owes no duty of care to keep the premises safe for entry or use by others ... or to give any warning of hazardous conditions ... on such premises." However, the statute then revokes the immunity in the case of "any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner." Because the plaintiff was a trespasser, the court in Charpentier reasoned that the landowner was entitled to the immunity. (Id. at p. 111, 236 Cal.Rptr. 233.) ⁴

Possibly because defendants were seduced by the similarities between this case and Charpentier (both involve injuries in public water, access to which was through private land), the focus of their summary judgment motion was the immunity conferred by Civil Code section 846. ⁵ As the parties framed the motion here, application of the immunity inversely depends on whether Swann was "expressly invited" onto the premises. Hence the basis of trial court's summary judgment was Swann's status as a noninvitee.

We are not bound, however, by the trial court's stated reasons for granting summary judgment. "We review the ruling, not [the trial court's] rationale." (California Aviation, Inc. v. Leeds (1991) 233 Cal.App.3d 724, 731, 284 Cal.Rptr. 687.) Here, while we affirm the ruling, there are two reasons why we do not rely on the rationale. ⁶

First, the principle of Occam's razor--that the simplest of competing theories should be preferred over more complex and subtle ones ⁷--is as valid juridically as it is scientifically. In this case the principle favors resolution along the relatively straightforward lines of where the injury took place and whether the defendants had any duty to warn of hazards in that area rather than the factually and legally subtle problem of whether the friend of a friend of a friend who shows up at a party on one's property has really been "invited" there.

Second, the question of whether a landowner has a duty of care to any given individual logically precedes the question of whether that individual comes within an exception to a statutory immunity the landowner might otherwise enjoy. "Conceptually, the question of the applicability of a statutory immunity does not even arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff and thus would be liable in the absence of such immunity." (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 201-202, 185 Cal.Rptr. 252, 649 P.2d 894.) As Justice Crosby noted in his concurring opinion in Rombalski v. City of Laguna Beach (1989) 213 Cal.App.3d 842, 859, 261 Cal.Rptr. 820, " 'the immunity cart should not be placed before the duty horse.' " Or, in very simple terms, one should begin at the beginning.

We therefore do not reach the question of whether Swann was an "invitee" for purposes of section 846, or indeed, whether section 846 applies in this case at all. Our focus is on more basic principles.

Our starting point is the common sense rule that one generally cannot be liable, as a landowner, for injuries that occur on property outside one's ownership, possession or control. (Isaacs v. Huntington Memorial Hospital, supra, 38 Cal.3d at p. 134, 211 Cal.Rptr. 356, 695 P.2d 653 [see quotation, ante, at p. 24]; Seaber v. Hotel Del Coronado (1991) 1 Cal.App.4th 481, 487, 2 Cal.Rptr.2d 405 [" 'In premises liability cases, summary judgment may properly be granted where a defendant unequivocally establishes its lack of ownership, possession, or control of the property alleged to be in a dangerous or defective condition' "]; Gray v. America West Airlines, Inc. (1989) 209 Cal.App.3d 76, 81, 256 Cal.Rptr. 877 [source of Seaber quote]; Donnell v. California Western School of Law (1988) 200 Cal.App.3d 715, 720, 246 Cal.Rptr. 199 [law school in high crime area not liable to student injured on adjacent sidewalk]; Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 386, 243 Cal.Rptr. 627 [supermarket did not owe a duty to a customer struck by a motorist on an adjacent public street]; Southland Corp. v. Superior Court (1988) 203 Cal.App.3d 656, 670, 250 Cal.Rptr. 57 (dis. opn. of Arabian, J.) ["one cannot generally be held liable for a dangerous condition of nonowned, nonpossessed or noncontrolled property"]; accord: Hamilton v. Gage Bowl, Inc. (1992) 6 Cal.App.4th 1706, 1711, 8 Cal.Rptr.2d 819 [owner of bowling alley parking lot not liable to customer injured in lot by a sign which fell from an adjacent building even though the sign was in the parking lot's air space].)

A corollary is that a landowner has no duty to warn of dangers beyond his or her own property when the owner did not create those dangers. (Seaber v. Hotel Del Coronado, supra, 1 Cal.App.4th at pp. 487-488, 2 Cal.Rptr.2d 405 [hotel was not liable when patron was killed crossing street to reach parking lot frequently used by patrons because unless there is "statutory authority to the contrary, a landowner is under no duty ... to warn travelers of a dangerous condition not created by him"]; Balard v. Bassman Event Security, Inc. (1989) 210 Cal.App.3d 243, 250, 258 Cal.Rptr. 343 [nightclub security guard did not have a duty to warn single female customer about a group of inebriated men in nearby parked car who had verbally harassed other patrons]; A. Teichert & Son, Inc. v. Superior Court (1986) 179 Cal.App.3d 657, 663, 225 Cal.Rptr. 10 [owner of rock and gravel plant owed no duty to a cyclist to post signs warning of frequent truck traffic in and out of plant because accident was not attributable to any specific condition on owner's property].)

Of course, because it is a general rule, there are exceptions. Landowners or businesses have been held liable for...