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Pacific Gas and Electric Co. v. Superior Court (Zachary Rowe)

California Court of Appeals, First District, Second Division

April 5, 2017

PACIFIC GAS AND ELECTRIC COMPANY, Petitioner,
v.
THE SUPERIOR COURT OF SAN MATEO COUNTY, Respondent ZACHARY ROWE, a Minor, etc., et al., Real Parties in Interest.

         Superior Court of San Mateo County, No. CIV 515962 Hon. Steven L. Dylina, Judge

          Horvitz & Levy, Robert H. Wright, Jeremy B. Rosen; Pacific Gas & Electric Company, Barbara J. Damlos; Sedgwick LLP, Gregory C. Read for Petitioner.

          Rouda, Feder, Tietjen & McGuinn, Timothy G. Tietjen; Law Office of Gerald Clausen and Gerald Clausen for Real Party in Interest.

          STEWART, J.

         Civil Code section 846, California's recreational use immunity statute, confers property owners with immunity from liability arising from the recreational use of their property.[1] (See § 846.) At issue here is one of its enumerated exceptions, applicable when permission to enter the premises for a recreational purpose “was granted for a consideration.” (Id., 4th par., item (b).)

         Twelve-year-old Zachary Rowe suffered catastrophic injuries during a camping trip with his family to San Mateo County Memorial Park, when a 75-foot tree fell on his tent at 5:00 a.m. as he lay sleeping. Petitioner Pacific Gas and Electric Company (PG&E) owns and maintains an electricity distribution line in the park that serviced a nearby restroom, and has a license conferred by its utility tariff permitting it to enter the park to inspect and maintain its equipment and the vegetation in the vicinity of its power lines, including near the campsite where Zachary was injured. Zachary's family paid an entrance fee to camp there only to the park's owner, the County of San Mateo (County), but paid nothing to PG&E. It also is undisputed the County paid PG&E for electricity used at the park.

         Here, we are asked to decide whether PG&E retains its immunity under section 846, notwithstanding the payment of this camping fee to the County (there being no dispute that the statute otherwise applies to PG&E as a licensee of the campground's owner). PG&E contends that it does retain immunity, asking us to construe the consideration exception as applicable only when the defendant claiming immunity receives all or some portion of the consideration paid.

         We reject that interpretation of section 846. We conclude that the consideration exception to recreational use immunity does apply to PG&E even though Zachary's fee for recreational access to the campground was not paid to it, and therefore affirm the trial court's denial of PG&E's motion for summary judgment asserting section 846 immunity. We hold that the payment of consideration in exchange for permission to enter a premises for a recreational purpose abrogates the section 846 immunity of any nonpossessory interest holder who is potentially responsible for the plaintiff's injuries, including a licensee or easement holder who possesses only a limited right to enter and use a premises on specified terms but no right to control third-party access to the premises. The contrary interpretation urged by PG&E, making immunity contingent not on payment of consideration but its receipt, is supported neither by the statutory text nor the Legislature's purpose in enacting section 846, which was to encourage free public access to property for recreational use. It also would lead to troubling, anomalous results we do not think the Legislature intended. At bottom, construing this exception as applying only to defendants who receive or benefit from the consideration paid loses sight of the fact that recreational immunity is merely a tool. It is the Legislature's chosen means, not an end unto itself.

         BACKGROUND

         In the summer of 2012, Zachary and his family went camping in San Mateo County Memorial Park. Zachary's mother paid a $50 fee to the County for their five-night campsite rental.

         An electrical line runs adjacent to the campsite they rented, which delivers electricity to nearby restrooms. PG&E owns and maintains the electrical line, which consists of nine poles, approximately 1, 715 feet of electrical wire, transformers and other equipment. Pursuant to its utility tariff, PG&E has the right to enter the park to inspect and maintain the line and perform vegetation management, and it regularly does so.[2]

         At approximately 5:00 in the morning on July 23, 2012, a 75-foot tall tree fell and struck the tent at Campsite D-1 that Zachary occupied with his mother. The tree was located approximately 30 to 40 feet from PG&E's power line, within striking distance of the line had it fallen in that direction. Zachary suffered catastrophic injuries.

         Zachary, through his guardian ad litem, brought suit against PG&E, the County and others. He asserted a single cause of action against PG&E for negligence, alleging PG&E “was responsible for maintaining its electrical lines and adjacent areas in a safe condition, ” but “negligently inspected and maintained the trees in proximity to the electrical lines adjacent to [the campsite] where [Zachary] was severely injured, ” and failed to warn him and his mother “of the dangerous conditions presented by the diseased and rotten trees adjacent to the electrical lines and [his] campsite.”

         PG&E moved for summary judgment on the ground that it owed Zachary no duty of care as a matter of law pursuant to section 846. The trial court denied the motion, certified the question as appropriate for our interlocutory review under Code of Civil Procedure section 166.1, and this petition for writ of mandate followed.

         DISCUSSION

         I.

         Overview

         “Section 846 was enacted to encourage property owners to allow the general public to engage in recreational activities free of charge on privately owned property.” (Hubbard v. Brown (1990) 50 Cal.3d 189, 193 (Hubbard); accord, Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 707 (Delta Farms).) “The statutory goal was to constrain the growing tendency of private landowners to bar public access to their land for recreational uses out of fear of incurring tort liability.” (Hubbard, at p. 193.) It expresses “a strong policy that land should be open to recreational use.” (Id. at p.192.) The statute accomplishes this goal “by immunizing persons with interests in property from tort liability to recreational users, thus making recreational users responsible for their own safety and eliminating the financial risk that had kept land closed.” (Ibid.) Yet the Legislature didn't intend to protect landowners at all cost. “[I]n crafting legislation that would prevent the closure of private lands to recreational users because of landowners' liability concerns, the California Legislature sought to strike a fair balance between the interests of private landowners and those of recreational users.”[3] (Klein v. United States (2010) 50 Cal.4th 68, 82 (Klein).)

         Section 846's first paragraph “defines the scope of immunity.”[4] (Klein, supra, 50 Cal.4th at p. 77.) That paragraph states: “An owner of any estate or any other interest in real property, whether possessory or nonpossessory, 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, uses of, structures, or activities on those premises to persons entering for a recreational purpose, except as provided in this section.” (§ 846, 1st par., italics added.) There is no dispute that PG&E's license under its utility tariff constitutes an “interest” in San Mateo County Memorial Park that qualifies for protection under this paragraph. The statute “clearly” applies to “private owners of easements and of revocable licenses.” (Hubbard, supra, 50 Cal.3d at p. 197.) It “immunize[s] owners of any interest in real property, regardless of whether the interest includes the right of exclusive possession.”[5] (Ibid.; see also Manuel v. Pacific Gas & Electric Co. (2009) 173 Cal.App.4th 927, 938, fn. 3 [utility easement holder]; Colvin v. Southern Cal. Edison Co. (1987) 194 Cal.App.3d 1306, 1312 [same], abrogated on other grounds in Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1103-1109 (Ornelas).)

         Section 846's second paragraph defines the phrase “recreational purpose, ” by means of a non-exhaustive list of activities that “range from risky activities enjoyed by the hardy few... to more sedentary pursuits amenable to almost anyone....” (Ornelas, supra, 4 Cal.4th at p. 1101.) It includes “camping.” (§ 846, 2d par.)

         The third paragraph of section 846 “adds an additional immunity.” (Klein, supra, 50 Cal.4th at p. 78.) It states: “An owner of any estate or any other interest in real property, whether possessory or nonpossessory, 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 that 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 the person to whom permission has been granted except as provided in this section.” (§ 846, 3d par.)

         The consideration exception appears in the statute's fourth paragraph, which sets forth three “limitations on, or exceptions to, the landowner immunity it has granted.” (Klein, supra, 50 Cal.4th at p. 78.) It states: “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.” (§ 846, 4th par., italics added). Its application here, where PG&E received no portion of the consideration paid, presents an issue of first impression under California law.[6]

         The principles governing our interpretation of this provision are set forth in Klein, supra, 50 Cal.4th 68, the Supreme Court's most recent decision to construe section 846. As was said in Klein, “In construing statutes, we aim ‘to ascertain the intent of the enacting legislative body so that we may adopt the construction that best effectuates the purpose of the law.' ” (Id. at p. 77.) This requires us to look first to the statute's words, “ ‘because the statutory language is generally the most reliable indicator of legislative intent.' ” (Ibid.) “When the statutory text is ambiguous, or it otherwise fails to resolve the question of its intended meaning, courts look to the statute's legislative history and the historical circumstances behind its enactment.” (Ibid.) Finally, where there is uncertainty, a court also should consider the consequences that are likely to result from a particular interpretation. (Ibid.; see also Ornelas, supra, 4 Cal.4th at p. 1105 [“Courts may, of course, disregard even plain language which leads to absurd results or contravenes clear evidence of a contrary legislative intent”].) Moreover, in construing this provision, we review the trial court's ruling de novo, because “[t]he meaning and construction of a statute is a question of law, which we decide independently.” (B.H. v. County of San Bernardino (2015) 62 Cal.4th 168, 189.)

         II.

         The Statute by Its Terms Does Not Grant Any Immunity Where Consideration Is Paid for Recreational Use of Property.

         At issue here, as noted, is the meaning of the phrase, “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.” (§ 846, 4th par., item (b).)

         Turning first to the statutory text, section 846 preserves tort duties “in any case where permission to enter... was granted for a consideration” without specifying who must receive the consideration. (See Graves v. U.S. Coast Guard (9th Cir. 1982) 692 F.2d 71, 73 [“The statute does not specify to whom the consideration is to be paid”].) It contains no language suggesting that the retention of potential tort liability extends only to the person or entity who receives the consideration. On the contrary, it specifies that tort duties are preserved “in any case where permission to enter for the above purpose was granted for a consideration, ” unless the consideration, “if any, ” was “paid to said landowner by the state.” (Italics added.) The language “in any case” is all-encompassing (cf. Ornelas, supra, 4 Cal.4th at p. 1105; id. at pp. 1109-1110 [conc. opn. of George, J.]). And it is followed by language that exempts some situations based on who pays the consideration (i.e., consideration paid by the state) but does not similarly exempt situations based on who receives it. To put it simply, the Legislature knew how to limit the consideration exception but chose not to limit the exception in the manner PG&E suggests.[7] In short, the statutory language does not support the interpretation urged by PG&E.

         Nor are we at liberty to add terms to the statute, which in effect PG&E asks us to do. PG&E urges us to construe the statutory text as if it read: “for injury suffered in any case where permission to enter for the above purpose was granted for a consideration paid to the property owner invoking this section other than the consideration, if any, paid to said landownerby the state, or where consideration has been received from others for the same purpose.” In interpreting section 846, our job is “simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted....” (Code Civ. Proc., § 1858.) We cannot add limiting language to section 846 when the Legislature did not. (See Wang v. Nibbelink (2016) 4 Cal.App.5th 1, 18 (Wang) [rejecting construction of section 846 “that would have us add language not placed there by the Legislature”]; cf. Ornelas, supra, 4 Cal.4th at p. 1105 [rejecting construction of section 846 that entailed a “a purely judicial construct, without any basis or support in the statutory language”]; Wang, at p. 18 [“Ornelas declined to add language to the statute”].)

         In arguing for a construction that would narrow the operation of paragraph 4, PG&E contends the key statutory language is the phrase, “said landowner.” PG&E asserts, “the consideration exception first discusses the circumstance in which permission to enter is granted for a consideration and then refers immediately to ‘said landowner.' ” According to PG&E, the term “landowner” “refers to a property owner claiming immunity, ” and “[b]ecause the term ‘said' relates back to what is previously mentioned... it follows that a landowner not receiving consideration for permission to enter the property will be afforded immunity under the statute.” The parties debate the rules of grammar on this point at some length, but we need not travel that ground. The flaw in PG&E's argument is its assertion that the term “landowner” refers to a property owner claiming immunity. There is no textual basis for that position. PG&E's argument might make sense if there was an earlier reference in the paragraph (or, for that matter, in the statute) to a property owner claiming immunity. But there is none-neither in paragraph 4 nor anywhere else in the statute.

         PG&E's sole support for its position rests on a misreading of the Supreme Court's decision in Klein, which PG&E asserts “construed” the term “landowner” “as shorthand for the owner of a possessory or nonpossessory interest in property claiming immunity under the statute.” PG&E overreads Klein. At issue in Klein was the kind of tort claims displaced by the statute, not which property owners may claim the statute's protection. Specifically, Klein held section 846 doesn't apply to acts of vehicular negligence by a landowner or its employee. (Klein, supra, 50 Cal.4th at p. 72.) In two portions of the opinion PG&E cites, the court used the term “landowner”: in one instance, describing the legal effect of the statute's first paragraph (see id. at p. 77, quoted ante) and in the other, analyzing the statute's breadth (see id. at p. 85 [earlier case law's characterization of the statute as “extremely broad” refers to, inter alia, “the type of interest held by the landowner (possessory or nonpossessory)”]). Contrary to PG&E's characterization, Klein did not “construe” the term “landowner” as used in the statute's fourth paragraph. The court did not address that statutory language.

         PG&E similarly misplaces reliance on Johnson v. Unocal Corp. (1993) 21 Cal.App.4th 310, 316 (Johnson) for the proposition that there must be an “ ‘actual payment of an entrance fee to the defendant.' ” (Italics added by PG&E.) Johnson did not address whether the consideration exception applies only to a party who receives payment of consideration; rather, it addressed what constitutes consideration for purposes of the exception. There the plaintiff, injured during a game of horseshoes at a company picnic on the defendant's land, argued his employer's execution of a hold harmless agreement in favor of the defendant constituted consideration within the meaning of the consideration exception to statutory immunity. (Id. at p. 312.) The court disagreed, holding “such a remote, potential ‘benefit' ” to the owner did not constitute consideration. (Id. at p. 315.) “The mere potential for reimbursement [by the employer] for defense costs incurred if a suit were filed is neither current payment for entry nor a benefit currently received for entry.” (Id. at p. 316.) Nothing in Johnson aids PG&E's argument.[8]

         There are two possible meanings of the term “landowner” as used in the consideration exception in paragraph 4, but we need not decide between them. Our colleagues in Division Three have construed that term, as used in the invitation exception, to refer only to the owner of the fee and not to a utility easement holder. (See Jackson v. Pacific Gas & Electric Co. (2001) 94 Cal.App.4th 1110, 1118 (Jackson).) The other possible meaning, which Jackson rejected, is that “said landowner” refers back to the owner referenced in paragraphs 1 and 3, i.e., to an “owner of any estate or any other interest in real property, whether possessory or nonpossessory....” (See § 846, 1st and 3d paragraphs; see also Hubbard, supra, 50 Cal.3d at p. 197 [section 846 “immunize[s] owners of any interest in real property, regardless of whether the interest includes the right of exclusive possession”], italics added; Ornelas, supra, 4 Cal.4th at p. 1102 [section 846 reflects an “ ‘ownership requirement [that is] both exceptionally broad and singularly ambiguous' ”].) In the end, the interpretation of the consideration exception does ...


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