We are called upon to interpret provisions of Civil Code section 846, which generally protects landowners from liability for injuries to recreational users of their land.
Timothy O'Shea (plaintiff) appeals from an order granting a summary judgment in favor of Claude C. Wood Company (defendant).
In support of the motion for summary judgment defendant submitted two declarations by H.E. Baker, a vice president of the Claude C. Wood Company. Baker declared that defendant and Westmont had entered into an agreement whereby defendant agreed to remove dirt from property which Westmont was developing. As part of the agreement defendant was to have exclusive possession of sufficient property in the tract in which to
In fact, by the written agreement defendant agreed to remove dirt from the "Beckman" property, where ponding basins were being excavated, and to pay a royalty per cubic yard of material removed. Westmont agreed to provide a temporary stockpile area on the property adjacent to the ponding area for excess dirt if defendant was not able to dispose of all of the dirt. Westmont agreed to provide routes for the necessary hauling. Defendant, in turn, agreed to hold Westmont harmless from any actions arising out of the transaction.
At the hearing on the motion for summary judgment counsel stipulated that the complaint be amended to state that defendant willfully and maliciously failed to guard or warn against a dangerous condition on the property. The court, in granting the motion for summary judgment, found that defendant was an owner of an estate in real property within the meaning of Civil Code section 846. In addition, the court found that the declarations of Baker established that there was no factual basis to support a finding of willful or malicious failure to guard or warn against a danger on the property.
1. An Estate in Real Property — Civil Code Section 846
Civil Code section 846 is an exception to the general rule that an owner is responsible for injury occasioned to another by want of ordinary care or skill in the management of his property. (See Civ. Code, § 1714.) It provides that an owner of an estate in real property owes no duty to persons entering or using the property for certain specified activities, including the type of vehicular riding we consider.
Since it was enacted in 1963, the courts have had occasion to consider Civil Code section 846. In English v. Marin Mun. Water Dist. (1977) 66 Cal.App.3d 725 [136 Cal.Rptr. 224], the court concluded that the amendments in 1970, 1971, 1972 and 1976, which added additional recreational uses to the landowner's immunity, are indicative of a legislative policy to reduce the growing tendency of landowners to withdraw land from recreational access by removing the risk of gratutious
The parties agree, as do we, that Civil Code section 846 provides immunity to the owner of an estate in real property for ordinary negligence to motorcycle riders. However, plaintiff maintains that defendant was not the owner of an estate in real property. Rather, plaintiff argues defendant's agreement with Westmont makes defendant a licensee only. Defendant, on the other hand, urges the view that the agreement created a tenancy, thus giving it an estate in the land.
2. Right of Possession as Against Plaintiff and Third Parties.
Section 846 was enacted against the background of the common law of tort liability. At the time it was enacted, the courts were placing increased
A possessor of land is one who is in occupation of the land with the intent to control it. (Rest.2d Torts, § 328E.) The limitation of liability provided to possessors of land under common law principles was not limited to the holder of legal title, but depended on the possessor's right to the property as compared with the injured party's right. Thus, the California Supreme Court, quoting from 45 Corpus Juris, at page 786, stated: "`But ownership of the property trespassed upon is not an absolute test, for the rule of nonliability may be successfully invoked by one who, although not the owner of the property on which the injury occurred, had rights therein superior to those of the trespasser who was injured ...'" (Hamakawa v. Crescent Wharf etc. Co. (1935) 4 Cal.2d 499, 503-504 [50 P.2d 803]; see also Palmquist v. Mercer (1954) 43 Cal.2d 92, 101 [272 P.2d 26].)
We believe that in enacting Civil Code section 846 the Legislature did not mean to disturb the common law rule of limited liability to possessors. The statutory limitation applies to those who have a possessory interest, which includes the right to exclusive occupation as against the injured user. This construction of the statute is in accord with the legislative purpose of encouraging such persons to leave the property open for recreational purposes. (See Lostritto v. Southern Pac. Transportation Co., supra, 73 Cal. App.3d at p. 749; English v. Marin Mun. Water Dist., supra, 66 Cal. App.3d at p. 731.) Pursuant to Civil Code section 846, defendant, although a licensee, owed no duty to plaintiff for simple negligence if it had the right to possession of the property in question as against plaintiff and other third persons.
Defendant, however, has failed to establish its right to possession against third persons. The trial court erred in determining that defendant was entitled to the protection of Civil Code section 846 as a matter of law. A triable issue of fact remained — was there a right of possession as against plaintiff? A licensee, as such, is not entitled to possession against third persons. The license may give him such possession (Rest., Property,
3. Willful or Malicious Failure to Guard or Warn
Plaintiff concedes that if defendant is entitled to rely upon Civil Code section 846, the only possible basis for imposing liability under the facts of this case, would be upon willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity. (Civ. Code, § 846, par. 4.)
Willful misconduct or malice are not to be presumed. Baker's declaration that defendant did not know that plaintiff was using the property and that defendant did not willfully or maliciously fail to guard or warn plaintiff of danger was sufficient to negate willful or malicious conduct. In order for plaintiff to defeat the summary judgment motion it was necessary that he show only that there is some evidence which tends to show willful or malicious conduct. Plaintiff failed to make such a showing. On remand the trial court may properly enter an order that there is no substantial controversy on that issue, i.e., partial summary judgment.
The order of the San Joaquin County Superior Court granting summary judgment in favor of Claude C. Wood Company is reversed and the cause is remanded for further proceedings consistent with this opinion.
Paras, Acting P.J., concurred.
I have joined in the lead opinion and in its reasoning, but wish to point out a supplemental matter in connection with the comments contained in the last paragraph of section 2 thereof.
Two motions for summary judgment were filed concurrently, one by defendant Grupe Development Company (Grupe) and the second by defendant Claude C. Wood Company (Wood). Both were heard and granted at the same time. Grupe was the owner of the property, having purchased it from Westmont Development Company sometime after the agreement was made for the property's use by Wood. The Grupe motion was supported by two declarations of Douglas Unruh, a company officer, in which he expressly states that no permission was given to plaintiff to enter the property, and Grupe knew of no dangerous condition of the
The Wood motion states that it is based upon its own points and authorities as well as the points and authorities offered in support of the Grupe motion. But it does not state that it is based upon the declarations which support the Grupe motion, and thus does not establish the exclusiveness of Wood's possession as against plaintiff. If the Unruh declarations had been incorporated (assuming no factual contradiction), that exclusiveness would have been established, for Unruh clearly states that Grupe gave no permission to plaintiff to be on the property, or to any third person except Wood; since Wood also negates any such permission to plaintiff, the declarations of both, considered together, establish that Wood's right to occupy was exclusive as against plaintiff who had no such right at all.
I point out the foregoing in order perhaps to shorten these proceedings, if the totality of the facts is indeed as contained in the referenced declarations. Obviously a further motion for summary judgment by Wood containing the missing information, unopposed (like the one before us) by contradictory factual matter, will result in a resolution of the case without trial.
I concur in the result and agree that a question of fact exists as to the nature of the contract between defendants, Claude C. Wood Company and Grupe Development Company. The facts presented do not indicate what possessory rights defendant Wood had.
I dissent from that portion of the opinion that holds a licensee entitled to possession of land upon which an accident involving injury results is not entitled to the protection of Civil Code section 846. I base my dissent upon the reasons previously stated in my dissent in Darr v. Lone Star Industries, Inc. (1979) 94 Cal.App.3d 895 [157 Cal.Rptr. 90].
A petition for a rehearing was denied November 20, 1979. Evans, J., was of the opinion that the petition should be granted.
"A `recreational purpose,' as used in this section, includes such activities as fishing, hunting, camping, water sports, hiking, spelunking, riding, including animal riding, snowmobiling, and all other types of vehicular riding, rock collecting, sightseeing, picnicking, nature study, nature contacting, recreational gardening, gleaning, winter sports, and viewing or enjoying historical, archaeological, scenic, natural, or scientific sites.
"An owner of any estate in real property who gives permission to another for entry or use for the above purpose upon the premises does not thereby (a) extend any assurance that the premises are safe for such purpose, or (b) constitute the person to whom permission has been granted the legal status of an invitee or licensee to whom a duty of care is owed, or (c) assume responsibility for or incur liability for any injury to person or property caused by any act of such person to whom permission has been granted except as provided in this section.
"This section does not limit the liability which otherwise exists (a) for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity; or (b) for 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 (c) to any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner.
"Nothing in this section creates a duty of care or ground of liability for injury to person or property."