Valladares v. Stone

• Decision Date: 27 February 1990
• Docket Number: No. C004308,C004308
• Citation: 267 Cal.Rptr. 57,218 Cal.App.3d 362
• Parties: Miguelangel VALLADARES, et al., Plaintiffs and Appellants, v. Willard E. STONE, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 57

267 Cal.Rptr. 57

218 Cal.App.3d 362

Miguelangel VALLADARES, et al., Plaintiffs and Appellants, v. Willard E. STONE, Defendant and Respondent.

No. C004308.

Court of Appeal, Third District, California.

Feb. 27, 1990.

Harvey L. Roberts and Jane Genco of Memering, Varanini, Hurst, Crowle & Trimble, Sacramento, for plaintiffs and appellants.

Timothy M. Blaine of Porter, Scott, Weiberg & Delehant, Sacramento, for defendant and respondent.

SCOTLAND, Associate Justice.

In this appeal from a judgment entered after the granting of defendant's motion for summary judgment, ¹ we hold that Civil Code section 846, which provides that an owner of any estate or interest in real property owes no duty of care to keep the premises safe for those who enter or use the property for recreational purposes without express invitation or payment of a fee, applies to a person who is injured while climbing and playing in a tree on a vacant lot in a residential neighborhood. ²

As discussed more fully below, the fact that tree climbing is not included in the list of activities set forth in the section is of no consequence because the uses enumerated therein are simply illustrative of the activities which constitute recreational uses within the meaning of the statute. Moreover, contrary to plaintiffs' claim, Civil Code section 846 is not limited to rural land but applies equally to an unimproved, undeveloped lot adjacent to a residential subdivision within city limits.

FACTS AND PROCEDURAL BACKGROUND

After "escaping" from his mother's supervision, four-year-old Miguelangel followed other children onto a vacant lot owned by defendant. The lot is adjacent to a residential housing development in the City of Arbuckle. While there, Miguelangel fell from a tree in which he had been playing and sustained a corneal laceration to his left eye.

Miguelangel, through his guardian ad litem, and his parents, Enrique and Aurelia Valladares, filed a complaint alleging that the minor's injury was the proximate result of defendant's negligence in maintaining and supervising his property. In addition to damages directly resulting from Miguelangel's injury, his parents sought to recover for emotional distress they allegedly suffered "upon observing the severe injuries at the scene of the subject accident."

Defendant successfully moved for summary judgment on the basis that plaintiffs' recovery is barred by Civil Code section 846. (Further statutory references are to the Civil Code unless otherwise specified.) On appeal, plaintiffs contend that the trial court erred in granting the motion. They claim defendant is not entitled to the protection of section 846 because: (1) Miguelangel's use of defendant's property is not one of the recreational activities included within the purview of the statute; and (2) defendant's land falls within a judicially recognized exception to section 846 excluding property unsuitable for recreational purposes. We disagree and shall affirm the judgment.

DISCUSSION

I

Section 846 ³ constitutes an exception to the general rule that a private landowner owes a duty of reasonable care to any person who enters his or her property. (Charpentier v. Von Geldern (1987) 191 Cal.App.3d 101, 107, 236 Cal.Rptr. 233.) 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 consideration; or (3) the landowner expressly invites rather than merely permits the user to come upon the premises. In the absence of any of these exceptions, the duty owed by the landowner is no greater than that owed to a trespasser under common law: i.e., the recreational trespasser on private land assumes the risk of injury, absent willful or malicious misconduct by the landowner. (Rowland v. Christian (1968) 69 Cal.2d 108, 113-114, 70 Cal.Rptr. 97, 443 P.2d 561; Charpentier, supra, 191 Cal.App.3d at p. 108, 236 Cal.Rptr. 233.) The legislative purpose of section 846 is to encourage landowners to keep their property accessible and open to the public for recreational use without charge by limiting their liability for injuries sustained during such use. (Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 707-708, 190 Cal.Rptr. 494, 660 P.2d 1168; Charpentier, supra, 191 Cal.App.3d at p. 108, 236 Cal.Rptr. 233.)

Plaintiffs do not contend that defendant willfully or maliciously failed to guard or warn against a dangerous condition or use of his property. They also acknowledge that Miguelangel entered defendant's vacant lot to play in a tree on the property, and that he did so without payment of consideration and without express invitation from defendant. Accordingly, there are no triable issues of fact regarding the prerequisites for invoking section 846. Rather, plaintiffs contend that this section is inapplicable to the facts of this case because tree climbing is not a recreational activity and defendant's property is not the type of land covered by the statute.

"It is elementary that the construction of a statute and the question of whether it is applicable present solely questions of law. [Citation.]" (Dean W. Knight & Sons, Inc. v. State of California ex rel. Dept. of Transportation (1984) 155 Cal.App.3d 300, 305, 202 Cal.Rptr. 44.) When "... no triable issues of fact are presented, and the sole question is one of law, that question may appropriately be determined on a motion for summary judgment. [Citations.]" (Jones-Hamilton Co. v. Franchise Tax Bd. (1968) 268 Cal.App.2d 343, 347, 73 Cal.Rptr. 896.) "In assessing the validity of an order granting summary judgment, we independently review the trial court's decision, ruling de novo on questions of law...." (Korens v. R.W. Zukin Corp. (1989) 212 Cal.App.3d 1054, 1057-1058, 261 Cal.Rptr. 137.) "On appeal, all intendments are in favor of the party who opposed the motion. [Citation.]" (Charpentier v. Von Geldern, supra, 191 Cal.App.3d at p. 107, 236 Cal.Rptr. 233.) With these principles of review in mind, we examine plaintiffs' contentions.

II

Section 846 currently states 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.' " This statute has been amended several times since its enactment in 1963 (Stats.1963, c. 1759, p. 3511, § 1) to add various types of activities to its list of recreational purposes. ⁴

Plaintiffs argue that, because section 846 lists certain activities and has been amended various times to add to its list, the section applies only when entry or use of private property is for one of the recreational purposes enumerated in the statute. Since the Legislature has not expressly listed tree climbing as a recreational purpose within the meaning of section 846, plaintiffs contend that the trial court erred in applying this statute to Miguelangel's entry onto defendant's land for the purpose of playing in a tree.

In urging us to read into section 846 a legislative intent that the statute not apply to any activity not specified in the section, plaintiffs run afoul of fundamental rules of statutory construction. In ascertaining legislative intent, a court must look to the words of the statute and give effect to the usual, ordinary import of the language employed. (Title Ins. & Trust Co. v. County of Riverside (1989) 48 Cal.3d 84, 91, 255 Cal.Rptr. 670, 767 P.2d 1148; Long Beach Police Officers Assn. v. City of Long Beach (1988) 46 Cal.3d 736, 741, 250 Cal.Rptr. 869, 759 P.2d 504; People v. Overstreet (1986) 42 Cal.3d 891, 895-896, 231 Cal.Rptr. 213, 726 P.2d 1288; People ex rel. Younger v. Superior Court (1976) 16 Cal.3d 30, 40, 127 Cal.Rptr. 122, 544 P.2d 1322.) When statutory language is clear and unambiguous, there is no need for construction, and the plain meaning of the statute must prevail. (People v. Overstreet, supra, 42 Cal.3d at p. 895-896, 231 Cal.Rptr. 213, 726 P.2d 1288; State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (1985) 40 Cal.3d 5, 15, 219 Cal.Rptr. 13, 706 P.2d 1146.)

There is no ambiguity in section 846. By stating that a recreational purpose "includes such activities as" those listed therein, the statute clearly indicates that the list is merely illustrative of the activities which constitute a recreational purpose within the meaning of the section. Under the "usual, ordinary import" of the plain meaning of section 846, other recreational uses similar to those listed fall within the purview of the statute.

In determining whether tree climbing is such a use, we must give effect to the common meaning of the statutory language. A recreational purpose is one intended to refresh the body or mind by diversion, amusement or play. (Webster's Third New International Dictionary (1986) p. 1899.) Clambering about in trees is such an activity. With fond memories of the tree-scaling days of our youth, we conclude that climbing a tree for play is, as a matter of law, a recreational purpose within the meaning of section 846. Certainly, it is a form of "nature contacting" contemplated by the statute.

Plaintiffs' reliance on Domingue v. Presley of Southern California (1988) 197 Cal.App.3d 1060, 243 Cal.Rptr. 312 is misplaced. Domingue held only that the appellant in that case raised a triable issue of fact as to whether his riding a bicycle on respon...