Young v. State

• Decision Date: 08 March 1982
• Citation: 181 Cal.Rptr. 160,129 Cal.App.3d 559
• Court: California Court of Appeals Court of Appeals
• Parties: Neil YOUNG, Plaintiff and Appellant, v. STATE of California, Defendant and Respondent. Civ. 26154.

Page 160

181 Cal.Rptr. 160

129 Cal.App.3d 559

Neil YOUNG, Plaintiff and Appellant, v. STATE of California, Defendant and Respondent.

Civ. 26154.

Court of Appeal, Fourth District, Division 1, California.

March 8, 1982.

Hearing Granted May 27, 1982.

Cause Retransfered, see 193 Cal.Rptr. 144, 666 P.2d 1.

Sheeks, Oswald & Bassing and Peter J. Bassing, San Rafael, and Brian M. Sax, San Francisco, for plaintiff and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Dennis G. Fry, Deputy Atty. Gen., for defendant and respondent.

STANIFORTH, Associate Justice.

The sole question presented is whether the trial court in granting a summary judgment correctly interpreted Civil Code section 846 ¹ in holding the State was immune from liability for personal injuries suffered by Neil Young when he struck his head on a submerged object at a State owned beach. Young was engaged in "water sports," a recreational activity of the type covered by Civil Code section 846, when injured.

Young contends the immunity granted by section 846 does not apply to a "public entity," does not bar recovery from the State of California which is granted most specific and varied forms of immunity under the California Tort Claims Act (Gov.Code, §§ 810 et seq.).

FACTS

In June 1976 Neil Young was swimming at Bolinas Beach, Marin County, when he struck his head on a submerged object and sustained severe injuries which have left him quadriplegic. Young identified the object he hit (in his deposition) as a chunk of concrete about a foot in diameter and a foot high and at a depth of about three feet. It appeared to have broken off a seawall or "groin" extending out from beach into the water. This groin had been built in the 1880's and had been cast in concrete in the 1930's and 40's, and was in a deteriorating condition. Young has complained for damages for personal injuries alleging this constituted a dangerous condition (Gov.Code, § 830, subd. (a)) and no warnings of the danger were posted at the scene.

In its first motion for summary judgment, the State of California filed a declaration by a state land commission official representing that the State had not been responsible for issuing permits or for the After the denial of the State's motion, Young in answer to interrogatories admitted he did not claim to qualify for any exceptions appearing in Civil Code section 846 to the grant of immunity given to "an owner of any estate" against claims for damages by recreational users of the property. Specifically Young said he did not claim (1) the State willfully or maliciously failed to guard against the dangerous condition, (2) or that he paid a consideration to enter the premises where the injury occurred, (3) or that he was expressly invited to the premises. Young also admitted he was engaged in "water sports" when he was injured.

construction of any structure in the area of the accident. This motion was denied on the basis that triable material issues of fact existed under Civil Code section 846 as to whether the State's conduct was willful or malicious in allowing the alleged dangerous condition to exist, whether the State had knowledge of the property's condition, whether the property's condition was natural and unimproved and whether the proximate cause of Young's injury could be shown. ²

Based upon these responses, the State moved a second time for summary judgment. Young defended urging the nonapplicability of Civil Code section 846 to a public entity, the State of California. The trial court granted summary judgment holding Civil Code section 846 applied to governmental entities and barred Young's action.

DISCUSSION

I

Whether Civil Code section 846 was intended to apply to land publicly held as well as to that held in private hands is a question already addressed by several California Courts of Appeal with conflicting results. In Nelsen v. City of Gridley, 113 Cal.App.3d 87, 169 Cal.Rptr. 757, the court after a thorough analysis of the issues held that Civil Code section 846 was not applicable to public entity land owners. ³

The contrary view has been expressed by other California appellate courts. The leading case is English v. Marin Mun. Water Dist., 66 Cal.App.3d 725, 136 Cal.Rptr. 224, followed by Blakley v. State of California, 108 Cal.App.3d 971, 167 Cal.Rptr. 1; Moore v. City of Torrance, 101 Cal.App.3d 66, 166 Cal.Rptr. 192; Gerkin v. Santa Clara Valley Water Dist., 95 Cal.App.3d 1022, 157 Cal.Rptr. 612.

Sheer numbers point to a quiet acceptance of the majority view but several cogent and weighty rules of law as well as the authoritative analysis of the statute here under inspection indicate that the appeal court in Nelsen v. City of Gridley, supra, has captured the true legislative intent.

In the first place Civil Code section 846 limits the duty of an owner of any estate in real property with respect to persons entering it or using it without express invitation or payment of a consideration to do so for a variety of recreational uses including water sports, the species here involved. The owner is not relieved of liability for a "willful or malicious failure to guard or warn against a dangerous condition" on the property, yet section 846 specifically provides that the owner "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." And permission to enter for the specified purposes does not give "the person to whom permission has been granted the legal status of an invitee or a licensee to whom a duty of care is owed." The legislative intent behind section 846 has been found in a series of cases to be as follows: the intent of the California Legislature in adopting section 846 was to encourage landowners to open their property to the public for recreation. (Phillips v. United States, 590 F.2d 297, 299; Simpson v. United States, 652 F.2d 831, 833.) Such encouragement was necessitated by the threat of tort liability which in recent years has led landowners to bar people from trespassing on their land. (Parish v. Lloyd, 82 Cal.App.3d 785, 787-788, 147 Cal.Rptr. 431; Gerkin v. Santa Clara Valley Water Dist., 95 Cal.App.3d at p. 1026, 157 Cal.Rptr. 612, and cases cited.) And as this court stated in Smith v. Scrap Disposal Corp., 96 Cal.App.3d 525, 529, 158 Cal.Rptr. 134: "The reason the Legislature enacted section 846 was to reduce landowner tendency to remove real property from recreational access. [Citations.] Such exemption from tort liability promotes the use of private land for general public recreational use. [Citations.]" Such a legislative intent is not congruent with the well recognized purposes of the California Tort Claims Act. (Gov.Code, §§ 810-840.6.) Not only are the legislative purposes nonconformable, but section 846 appears to be actually inconsistent with the dangerous condition provisions of chapter 2 of the California Tort Claims Act which clearly impose a duty on public entities to take reasonable precautions to prevent injuries from dangerous conditions to their property subject only to stated exceptions and immunities in chapter 2. (See Hill v. People ex rel Dept. of Transportation, 91 Cal.App.3d 426, 154 Cal.Rptr. 142, which held that the immunities relating to issuance of permits as provided by chapter 1 of the Torts Claim Act (Gov.Code, § 818.4) were not to be applicable to dangerous conditions liability based upon chapter 2.)

Moreover, the specific provisions of the Act relate to recreational property in ways that differ from Civil Code section 846. For example, Government Code section 831.2 provides immunity for natural conditions of unimproved public property including lakes, streams and beaches. Government Code section 831.4 provides immunity for unpaved access roads and recreational trails. Government Code section 831.6 provides immunity for unimproved and unoccupied portions of state lands. Government Code section 831.8 grants a qualified immunity relating to reservoirs and canals. None of these immunities are in any way related to a recreational use of the species of property or conditions involved.

To further illustrate this conflict, Government Code section 831.2 provides: "Neither a public entity nor a public employee is liable for an injury caused by a natural condition of any unimproved public property, including but not limited to any natural condition of any lake, stream, bay, river or beach."

This section is specific as to ownership of the property and as to the type of condition to which the immunity applies, to wit, a natural condition. Yet no restrictions whatsoever are specified as to the purpose, recreational or otherwise, for which a potential claimant enters.

Government Code section 835, "Conditions of liability," is specific as to ownership of the public property but general as to the definition of "dangerous conditions." There is no requirement that they be either natural or artificial or that the use for which the potential claimant entered is of a recreational nature. Furthermore, we must look to Government Code section 830, subdivision (a), for a definition of "dangerous condition" where a public entity owns or controls the land occupied. No such definitional limitation is to be found in section 846. Professor Van Alstyne (whose various works are relied upon by each party) most recently observed:

"In view of the comprehensive and specific coverage of immunities and liabilities on publicly owned recreational property included in the Tort Claims Act, it seems doubtful that CC § 846 was intended to constitute an additional statutory immunity or defense that may be asserted by public entities. While nothing in the Tort Claims Act precludes the invocation of immunities in statutory provisions outside the act (see § 2.29), the text of CC *164s 846 omits any mention of public entities and thereby suggests a...