Wang v. Nibbelink

• Decision Date: 13 October 2016
• Docket Number: C073871
• Citation: 208 Cal.Rptr.3d 461,4 Cal.App.5th 1
• Court: California Court of Appeals Court of Appeals
• Parties: Yan WANG et al., Plaintiffs and Appellants, v. Gregory NIBBELINK et al., Defendants and Respondents.

4 Cal.App.5th 1

208 Cal.Rptr.3d 461

Yan WANG et al., Plaintiffs and Appellants,

v.Gregory NIBBELINK et al., Defendants and Respondents.

C073871

Court of Appeal, Third District, California.

Filed October 13, 2016

Lamb and Frischer Law Firm, Bryan Lamb and Richard Frischer ; and Paul D. Fogel, San Francisco, Reed Smith for Plaintiffs and Appellants.

Horvitz & Levy, Jeremy B. Rosen and Julie L. Woods, Encino; Knudtson & Nutter, Gigi M. Knudtson, Roseville, and Brian D. McFarlin for Defendants and Respondents.

HULL

, J.

To encourage landowners to allow public use of the land for recreational purposes, Civil Code section 846

shields landowners from liability “for any injury to person or property caused by any act of the person to whom permission has been granted,” subject to statutory exceptions. (Civ. Code, § 846(c), 3d par.; unless otherwise set forth, statutory section references are to the Civil Code.) In this case of first impression, we hold section 846 [¶ 3](c) shields landowners from liability where such recreational users of the land cause injury to persons outside the premises who are uninvolved in the recreational use of the land, even where the plaintiffs also allege that the landowners' neglect of their own property-based duties contributed to the injury.

A horse ran away from a meadow owned by defendants Gregory Nibbelink, Bevlee Nibbelink, Gary D. Nibbelink, Linda A. Nibbelink, Robert G. Goulding, Diane K. Goulding, and Nibbelink Revocable Family Trust (meadow landowners) onto adjacent property known as Strawberry Lodge (Lodge) and trampled plaintiff Yan Wang as she and her husband, plaintiff Tyler Raihala, got out of their car to dine at the Lodge. This appeal involves plaintiffs' negligence claims against the meadow landowners who invoke section 846

.

The horse was part of the Wagon Train—an annual historical event simulating Old West travel by stage coach across the Sierras in Northern California. The meadow landowners were not involved in the event but allowed the event organizers and participants to use the meadow for overnight camping and horse containment. Plaintiffs had nothing to do with the Wagon Train, not even as spectators.

Plaintiffs appeal from summary judgment (Code Civ. Proc., § 437c

) entered in favor of the meadow owners, contending (1) the meadow owners forfeited section 846 by failing to plead it as an affirmative defense in their answer; (2) the statute does not apply to off-premises injury to a person who was not a participant or spectator of the recreational use; (3) even if section 846 applies, triable issues of fact preclude summary judgment; and (4) even if section 846 relieves the landowners from liability for negligence of the recreational users—Highway 50 Association (HFA) and horse rider Robert Donald Burnley—in failing to secure the horse, the landowners are liable for their own negligence in failing to ensure adequate secure containment for the event's horses, failing to build a fence, and failing to warn those nearby who were not participating in the event.

We affirm summary judgment in favor of the meadow landowners. Our decision does not affect potential liability of other defendants who are not parties to this appeal. (Code Civ. Proc., § 579

; Oakland Raiders v. National Football League (2001) 93 Cal.App.4th 572, 578, 113 Cal.Rptr.2d 255 [A final appealable judgment may be entered in favor of fewer than all defendants if it leaves no issue to be determined as to those defendants].)

FACTS AND PROCEEDINGS

This appeal presents issues in all three stages of summary judgment review: “ ‘First, we identify the issues raised by the pleadings, since it is these allegations to which the motion must respond; secondly, we determine whether the moving party's showing has established facts which negate the opponent's claims and justify a judgment in movant's favor; when a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue....’ ” (Waschek v. Department of Motor Vehicles (1997) 59 Cal.App.4th 640, 644, 69 Cal.Rptr.2d 296

.)

Plaintiffs' complaint alleged defendant Highway 50 Association (HFA) organized and operated an annual “recreational event” known as Wagon Train, wherein old-time stage coaches, accompanied by horses with riders, traveled for a period of days from one location in Northern California to the next, simulating “Old West” travel. HFA prearranged with property owners along the route for nightly accommodations for lodging and camping for participants and their horses.

One such stop was at defendant Strawberry Lodge, where participants could stay at the Lodge or camp in the nearby meadow and leave their horses in the meadow. The meadow landowners had permitted HFA to use the meadow for the Wagon Train for several years and knew there would be up to 75 horses.

On June 8, 2009, the Wagon Train made its stop for the night at the meadow and Lodge. That evening, plaintiff Wang and her husband happened to stop at the Lodge to dine at its restaurant. As Wang got out of the car, she was knocked over by a runaway horse that had participated in the Wagon Train that day, had been “tied down” in the meadow by his rider, defendant Burnley, and had escaped and run free onto the Lodge parking lot. As against Burnley, the complaint alleged he negligently selected a horse of unsuitable temperament for the event, negligently tied down and secured his horse to a tree limb on the meadow property, and then left to retrieve his vehicle elsewhere.

As against the meadow landowners, plaintiffs' complaint claimed negligence under section 1714 (injury caused by want of ordinary care in management of one's property) and negligent infliction of emotional distress suffered by Raihala personally witnessing the injury to his wife. An initial loss of consortium claim was later dismissed.

The negligence count alleged the meadow owners were negligent in that they:

(1) knew there needed to be an adequate number of safe containment options for the horses but failed to assure that they or HFA provided an adequate number;

(2) failed to assure that they or HFA promulgated and distributed rules and regulations that would assure safe containment;

(3) failed to assure there were trained staff in adequate numbers to enforce safety rules and regulations;

(4) failed to make adequate repairs and improvements to existing fencing so as to enclose the meadow property; and(5) failed to warn those nearby, who were not involved with the event, of the danger.

Unlike HFA, which pleaded section 846

as an affirmative defense, the meadow owners' answers denied all the complaint's allegations but did not specify section 846 or recreational immunity as an affirmative defense.

The meadow owners filed a motion for summary judgment based only on section 846

. Citing a declaration of owner Diane Goulding, they presented as undisputed facts The meadow (which some call Strawberry Meadow) borders Highway 50 to the north and the property owned by defendant Strawberry Lodge to the east. The meadow defendants purchased the meadow property in 1996. They had no involvement in organizing, supervising, or observing the Wagon Train event. HFA approached them and asked for permission to continue HFA's past practice of using the meadow for overnight camping during the Wagon Train. The meadow owners gave permission, subject to the meadow owners being included as additional insureds on the HFA's liability insurance policy. The meadow owners received nothing else of value. Before this incident occurred, Goulding had no knowledge of any similar mishap. Citing only the complaint, the separate statement of undisputed facts asserted: On June 8, 2009, Wagon Train participant Burnley secured his horse to a tree branch in the meadow. The horse freed itself, ran off the meadow property, entered the parking lot owned by neighbor Strawberry Lodge, and struck plaintiff Wang.

Plaintiffs filed written opposition to the motion on the merits of the section 846

issue. Plaintiffs argued section 846 does not provide immunity because they were not on the meadow owners' property and were not “recreating”; and even if section 846 applied to such off-premises injuries, triable issues existed, e.g., “parking” horses was not a recreational purpose. Plaintiffs submitted Burnley's declaration that he participated in the Wagon Train event, riding his own horse Sugar and stopped for a “layover” at the meadow. He tied her to a tree so that he could take the event bus to retrieve his vehicle where he had parked it the preceding night. He intended to drive his vehicle down to the Strawberry Lodge “area for the duration of the layover.” Plaintiffs also submitted depositions from meadow owners indicating a partial fence separated the meadow from Highway 50 when they purchased the property, and they never discussed adding fencing. Plaintiffs also asserted, among other things, that the landowners knew, and it is common sense, that a horse can “spook[ ]” and pose a risk of injury.

The landowners made evidentiary objections that were sustained by the trial court, but for purposes of the summary judgment motion, the landowners' reply papers accepted as undisputed the opposition's factual assertions (though not their legal conclusions).

We reject plaintiffs' assumption that we will disregard the landowners' evidence to which plaintiffs objected. Plaintiffs fail to acknowledge or show abuse of discretion in the trial court's overruling of their objections based on plaintiffs' failure to submit a proposed order in the form required by California Rules of Court, rule 3.1354(c)

. We disregard plaintiffs' belated attempt to challenge the evidentiary ruling in their reply brief, which does not even address the rule of court. (Garcia v. McCutchen (1997) 16 Cal.4th 469, 482, fn. 10, 66 Cal.Rptr.2d 319, 940 P.2d 906 [reviewing court may disregard new points raised for the first time in...