Opinion
G060213
09-23-2021
AMY CARTER, Plaintiff and Appellant, v. BRUCE CLAUSEN, Individually and as Trustee, etc. Defendant and Respondent.
Hollingsworth Law Firm, Daniel D. Hollingsworth; Law Office of John R. Coniglio and John R. Coniglio for Plaintiff and Appellant. Wood Smith Henning & Berman and Steven R. Disharoon for Defendant and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Monterey County No. 17CV002066, Marla O. Anderson, Judge. Affirmed.
Hollingsworth Law Firm, Daniel D. Hollingsworth; Law Office of John R. Coniglio and John R. Coniglio for Plaintiff and Appellant.
Wood Smith Henning & Berman and Steven R. Disharoon for Defendant and Respondent.
OPINION
GOETHALS, J.
A woman slipped and broke her ankle while watching her teenage son compete in a steer roping competition at an outdoor horse arena. She sued the owner of the property for negligence and premises liability. The trial court granted summary judgment for the property owner, citing Civil Code section 846 (section 846), which limits the liability of private landowners for injuries sustained from the public's recreational use of their land. After reviewing the matter de novo, we conclude the woman's claims fall within the language and intent of section 846, and none of the statutory exceptions to recreational immunity apply. We therefore affirm the judgment in favor of the property owner.
FACTS
The facts here are not in dispute. Defendant Bruce Clausen owns an outdoor horse arena in Prunedale, California. For many years, he has allowed the American Cowboy Team Roping Association (ACTRA) to hold ACTRA-sponsored roping events on his property.
The accident in question occurred at one such event in August 2015. Plaintiff Amy Carter learned about the event through an advertisement in a local newspaper. Her teenage son, who had participated in several similar events at Defendant's arena over the years, decided to sign up. Entry to the event was free; any member of the public could enter the arena and watch the competition free of charge. However, each roper who wanted to compete had to pay the timer a $20 fee per roping, and Defendant retained one-third of those fees. Plaintiff's son, like most other ropers, entered as many times as possible that day, and paid a total of $120 to compete.
Quoting from an article at www.britannica.com, Plaintiff describes steer roping as a “‘rodeo event in which a mounted cowboy pursues a full-grown steer with reinforced horns; lassos it with his rope, catching the animal by the horns; fastens the rope to his saddle; and stops his horse suddenly, throwing the steer to the ground. The cowboy then quickly dismounts and ties three of the steer's feet, raising both hands to signal completion. As in calf roping, the steer must stay tied for six seconds. The event is timed, and the contestant with the fastest time wins.'”
Plaintiff sat on the lawn beside the arena to watch the event with other family members. Between runs, her son asked her to bring him iced tea. Plaintiff, who was wearing rubber flip-flops, walked toward the arena with the beverage, heading down a sloping walkway made of pavers set in dirt and sand. Just before reaching the gate to the arena, she slipped and fell, breaking her ankle.
Before the accident, Defendant had never received any complaints about the walkway being dangerous or needing repair, and Plaintiff had never seen anyone else fall on that walkway. Although Plaintiff had heard general discussion about others slipping and falling on the path, she had no details about any such incidents.
Plaintiff filed a complaint against Defendant and ACTRA for negligence and premises liability. Plaintiff later dismissed all claims against ACTRA.
Plaintiff also sued the Bruce Clausen Family Trust and Bruce Clausen as trustee of the Bruce Clausen Family Trust. The parties do not distinguish between the trust and Mr. Clausen, so we refer to these parties collectively as “Defendant.”
Defendant moved for summary judgment, claiming immunity under section 846. The trial court granted the motion, dismissed the claims against Defendant with prejudice, and entered a judgment for Defendant. This appeal followed.
DISCUSSION
Our standard of review is well settled. Under Code of Civil Procedure section 437c, a motion for summary judgment must be granted if all the papers submitted show there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. We review a grant of summary judgment de novo and affirm summary judgment if correct on any of the grounds asserted in the motion. (Huerta v. City of Santa Ana (2019) 39 Cal.App.5th 41, 47.) Statutory interpretation is also a matter of law for our de novo review. (Land Partners, LLC v. County of Orange (2018) 19 Cal.App.5th 741, 745.)
1. California's Recreational Immunity Statute
Subject to certain statutory exceptions, California's recreational immunity statute limits the liability of private landowners for injuries sustained by another from the public's recreational use of their land. (§ 846, subd. (a) [landowners owe “no duty of care to keep the premises safe for entry or use by others for any recreational purpose”]; id., subd. (c) [landowners who allow others to enter or use premises for a recreational purpose do not extend assurance the premises are safe for that purpose and do not incur liability for injuries to those persons]; see id., subd. (d) [statutory exceptions].)
“The statute provides an exception from the general rule that a private landowner owes a duty of reasonable care to any person coming upon the land.” (Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1099 (Ornelas).) It is intended to encourage private landowners to permit free public use of their property for recreational purposes by relieving them of broad tort liability exposure. (Id. at p. 1103.)
Two elements must be met for recreational immunity to apply: “(1) the defendant must be the owner of an ‘estate or any other interest in real property, whether possessory or nonpossessory'; and (2) the plaintiff's injury must result from the ‘entry or use [of the “premises”] for any recreational purpose.'” (Ornelas, supra, 4 Cal.4th at p. 1100.)
Even if both elements are satisfied, section 846 “does not limit the liability which otherwise exists for any of the following: [¶] (1) Willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity. [¶] (2) Injury suffered in any case where permission to enter for the above purpose was granted for a consideration other than the consideration, if any, paid to said landowner by the state, or where consideration has been received from others for the same purpose. [¶] [or] (3) Any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner.” (§ 846, subd. (d)(1) (3).)
2. “Recreational Purpose”
Plaintiff contends section 846 does not apply because she was not engaged in a recreational activity when she fell, and she did not enter the property for a recreational purpose. We are not persuaded.
Section 846 defines ‘“recreational purpose”' to “include[ ] activities such 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, private noncommercial aviation activities, winter sports, and viewing or enjoying historical, archaeological, scenic, natural, or scientific sites.” (Id., subd. (b).)
That statutory list is not exhaustive, and courts broadly construe the term ‘“recreational activity.”' (Wang v. Nibbelink (2016) 4 Cal.App.5th 1, 29 (Wang) [historical wagon train simulation is recreational activity]; see, e.g., Ornelas, supra, 4 Cal.4th at p. 1101 [playing on old farm equipment is recreational activity].) Although whether a plaintiff entered the property for a recreational purpose is typically a question of fact, it may be decided as a matter of law on summary judgment where, as here, the relevant facts are not in dispute. (Wang, at p. 28.)
Applying those standards here, we conclude a roping competition qualifies as a recreational activity under section 846. Roping is a type of outdoor sport. And considering section 846 specifically includes “riding [and] animal riding” as examples of recreational purposes, we see no reason why a roping competition would not also qualify as a recreational activity.
Plaintiff nonetheless insists she did not personally participate in the roping event; she was only present to watch her son compete; she was injured not by steer roping, but rather by slipping on a dangerous walkway; and she was not “a random spectator enjoying the competition, ” but rather was there in a parental capacity. Again, we are not persuaded. In our Supreme Court's words, “whether plaintiff entered the property [for a recreational purpose], or merely accompanied the other [persons there for a recreational purpose], is immaterial. In either case, [Plaintiff's] presence was occasioned by the recreational use of the property, and [her] injury was the product thereof. [There is] no meaningful distinction, for purposes of section 846, between the passive spectator and the active participant. Both take advantage of the recreational opportunities offered by the property; neither, therefore, may be heard to complain when injury results therefrom.” (Ornelas, supra, 4 Cal.4th at p. 1102; see also Wang, supra, 4 Cal.App.5th at p. 18 [“recreational use includes both participants and spectators”].)
Here, the statute applies because Plaintiff's presence was occasioned by her son's recreational use of the property, and Plaintiff's injury was a product thereof. It makes no difference that Plaintiff was not personally participating in a recreational activity when she got injured; the statute applies irrespective of what caused her injury. (See § 846, subd. (c)(3) [landowner “who gives permission to another for entry or use for [a recreational] purpose upon the premises does not thereby... incur liability for any injury to person or property caused by any act of the person to whom permission has been granted” (italics added)].) Indeed, section 846 even “applies to relieve a landowner of liability for injury caused by a recreational user to an off-premises nonparticipant.” (Wang, supra, 4 Cal.App.5th at p. 23, italics added [meadow owners not liable to accident victim after horse from historic wagon train re-creation event escaped from meadow and trampled victim on neighboring property].)
We also reject Plaintiff's policy argument that section 846 should not apply when the landowner is using his or her property for a commercial purpose. This argument finds no support in the statutory language, and no California court has endorsed that test. (See Wang, supra, 4 Cal.App.5th at p. 29 [rejecting argument that section 846 applies only to “informal users” and not to business-sponsored recreational activities].)
In sum, Plaintiff's injury resulted from her entry and use of Defendant's property for a recreational purpose within the meaning of section 846.
3. Statutory Exceptions
Plaintiff alternatively attempts to invoke two of the statutory exceptions to section 846. She first contends section 846 immunity does not apply because Defendant had notice of the dangerous condition, and his failure to warn was therefore willful. (See § 846, subd. (d)(1) [statute “does not limit the liability which otherwise exists for... [w]illful or malicious failure to guard or warn against a dangerous condition, use, structure or activity”].)
The record does not support this contention. For failure to warn to rise to the level of willful misconduct, the defendant must have had ““‘(1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril.'”” (Manuel v. Pacific Gas & Electric Co. (2009) 173 Cal.App.4th 927, 945.) Nothing in this record suggests Defendant knew injury was “probable” or that he consciously failed to act. It is undisputed Defendant “was not aware of any complaints that the walkway needed repair prior to plaintiff's slip and fall, ” and further that he “at no time received any complaints that the subject walkway was dangerous.” The fact Defendant's property included a sand and paver sloped walkway does not mean he acted willfully or maliciously.
Plaintiff also maintains the “consideration” exception applies because Defendant received indirect compensation for the use of his land. (See § 846, subd. (d)(2) [statute “does not limit the liability which otherwise exists for... [i]njury suffered in any case where permission to enter for the above purpose was granted for a consideration”].)
Again, we must disagree. “To trigger the consideration exception of section 846, payment must be made in exchange for ‘permission to enter' the property or ‘received from others for the same purpose.' [Citation.] Consistent with this text, the few published California cases interpreting the consideration exception have noted that for the exception to apply, consideration must generally be paid ‘in the form of an entrance fee.'” (Miller v. Weitzen (2005) 133 Cal.App.4th 732, 739 (Miller).)
That was not the case here. The parties agree Defendant's property was open to any member of the public, free of charge, and neither Plaintiff nor anyone else paid an entrance fee. Each roper did pay the timer a fee to participate in the competition, and Defendant kept one third of what was collected. Defendant also apparently operated a concession stand in or near the arena. But the consideration exception only applies “where permission to enter [the land] for [a recreational] purpose was granted for a consideration.” (§ 846, subd. (d)(2), italics added.) Charging riders a fee for participating in the roping competition and selling food at a concession stand are not the same thing as charging all visitors for “permission to enter” the property. (See Miller, supra, 133 Cal.App.4th at pp. 739-740 [horse riding club members' trail maintenance fees paid as part of dues were not paid in exchange for admission to trails, so consideration exception did not apply]; Spence v. United States (E.D. Cal. 2009) 629 F.Supp.2d 1068, 1087-1088 [bicyclist's payment of fee to participate in recreational bicycling tour did not constitute entrance fee so as to fall within consideration exception].) Indeed, “we are aware of no [California] cases in which consideration did not involve the actual payment of an entrance fee by plaintiff to defendant” (Johnson v. Unocal Corp. (1993) 21 Cal.App.4th 310, 316), and Plaintiff cites none. The consideration exception does not apply to these facts.
DISPOSITION
The judgment is affirmed. Defendant shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
WE CONCUR: O'LEARY, P. J., MARKS, J. [*]
[*] Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.