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Garcia v. American Golf Corp.

California Court of Appeals, Second District, Second Division

May 3, 2017

JACOBO G. GARCIA, a Minor, etc., et al., Plaintiffs and Appellants,
v.
AMERICAN GOLF CORPORATION et al., Defendants and Respondents.

         APPEAL from a judgment of the Superior Court of Los Angeles County No. GC050056. Howard L. Halm, Judge. Reversed.

          Robert D. Feighner; Law Offices of Edward J. Deason, and Edward J. Deason, for Plaintiffs and Appellants.

          Michele Beal Bagneris, City Attorney, Ann Sherwood Rider, Assistant City Attorney; Law Offices of Michael R. Nebenzahl, Michael R. Nebenzahl; Carpenter, Rothans & Dumont, and Justin Reade Sarno, for Defendant and Respondent City of Pasadena.

          ASHMANN-GERST Acting P. J.

         Daley & Heft and Lee H. Roistacher for League of California Cities and California State Association of Counties as Amici Curiae on behalf of Defendant and Respondent City of Pasadena.

         In this opinion, we hold that the trail immunity in Government Code section 831.4[1] does not immunize a dangerous condition of a commercially operated, revenue generating public golf course that causes injury to pedestrians on an adjacent trail. Consequently, we reverse the summary judgment entered in favor of City of Pasadena (City) on the claims by Jacobo G. Garcia (Jacobo) and his mother, Ana Pavon (Pavon), (collectively appellants) that they were injured by a dangerous condition of City owned property known as the Brookside Golf Course when Jacobo was hit by an errant golf ball on a walkway City contends is a trail.[2]

         FACTS

         The Brookside Golf Course is owned by City and managed and operated by American Golf Corporation (American Golf) pursuant to a lease agreement. Within the Brookside Golf Course there are two 18-hole golf courses, the E.O. Nay Course and the C.W. Koiner Course.

         The Rose Bowl Loop (Loop) is comprised of roadways (including West Drive) that encircle the Rose Bowl Stadium and the Brookside Golf Course. These roads provide access to recreational areas within the Central Arroyo Park and Brookside Park, including the golf course, stadium, a children's museum, tennis courts, aquatics center, baseball and soccer fields, equestrian facilities and open park space. People use the Loop for walking, jogging, skating and bicycling.

         In 2001, after a person was hit by a golf ball outside the Brookside Golf Course, City erected safety nets at the 12th, 17th and 18th holes of the C.W. Koiner Course.

         There is a 13-foot wide pedestrian walkway (walkway) along the Loop. To distinguish it from the black asphalt roadway, the walkway is light brown in color. Also, it is separated from the roadway by a 12-inch wide white painted line as well as flexible delineators that City placed on the white line at 100 foot intervals. The Brookside Golf Course is separated from the walkway by a concrete wall topped by a chain link fence. There are various chain link gates in the fence that give motor vehicles access to the golf course for use as a parking lot during major events at the Rose Bowl. Both the fence and gates are approximately seven feet six inches high.[3] Inside the Brookside Golf Course, posted on the fence surrounding it, there are warning signs that read: “NOTICE [¶] YOU ARE WITHIN A GOLF COURSE AREA. [¶] YOU ASSUME THE RISK OF GOLF BALLS AND OTHER RECREATIONAL USERS.”

         On September 30, 2011, Jacobo was hit in the head by an errant golf ball while Pavon was pushing him in a stroller on the walkway. They were traveling along West Drive and near the first post of the gate for Lot 6, which is adjacent to the 15th hole of the C.W. Koiner Course.

         Appellants filed a government claim on February 22, 2012, which alleged: “Claimant [Jacobo] was struck in the head by a golf ball. He was transported by ambulance to Huntington Memorial Hospital and transferred to Children's Hospital where he was diagnosed with a brain injury, including a subdural hematoma. He experienced significant pain, cognitive difficulties, urinary dysfunction, eye injuries, and emotional distress. Claimant [Pavon] suffered emotional distress and the consequences of caring for [Jacobo].” Regarding the acts or omissions of City, appellants averred: “Failure of the public entity to protect against a dangerous condition on public property pursuant to [sections] 830 and 835. The public entity permitted a dangerous activity of a golf course next to a public sidewalk/walking and biking area; failed to protect against the known risk of golf balls leaving the golf course and striking persons on public property, but not on the golf course; failed to erect fences or other barriers to protect the public or arrange the golf course to minimize this risk or adequately warn golfers and pedestrians of this risk.”

         Appellants sued American Golf for negligence and City for dangerous condition of public property.

         City filed a motion for summary judgment and argued there was no dangerous condition of the walkway, City did not have actual or constructive notice of a dangerous condition of the walkway, and City was entitled to immunity under sections 831.4, 830.6, 820.8, 820.2 and 835.4. Also, City argued that it could not be liable because warning signs were posted, and Pavon assumed the risk because she was aware of, or should have been aware of, the danger of errant golf balls.

         In opposition, appellants argued that none of City's statutory defenses had merit in large part because a dangerous condition of the walkway was not at issue. Rather, the issue was a dangerous condition of the Brookside Golf Course, i.e., the fairways were too narrow and had too few trees, and the fences were too low. As for the warning signs, appellants argued, inter alia, that there was no evidence City erected them, and they did not provide a reasonable warning to pedestrians outside the golf course of the hazard posed by errant golf balls.

         In support of their argument regarding the signs, appellants pointed out that Bahman Janka (Janka), City's project director for the walkway as well as transportation administrator of its Department of Transportation, testified during deposition that he does not know who installed the signs, when they were installed or who maintains them. In addition, Janka testified he does not know who owns the signs or fence around the Brookside Golf Course. David Sams (Sams), City's person most knowledgeable concerning the management of the Brookside Golf Course and administration of the lease with American Golf testified during deposition that he does not know who erected the signs, when they were erected, or who owns the signs. Kyle A. Mitchell (Mitchell), the general manager of the Brookside Golf Course, testified during deposition that he is not aware of any signs warning pedestrians of golf balls. Appellants' civil engineering expert, Brad P. Avrit (Avrit), provided a declaration stating: “[T]he warning signs posted on the fence separating the golf course and the public walkway were not fully visible for an approaching pedestrian exercising reasonable care.... Furthermore, even if a pedestrian does read the warning signs, it is impossible to anticipate when and where a golf ball will come flying over the fence.... In addition, the warning on these signs [does] not tell a pedestrian what to do to protect themselves from a small, hard golf ball flying over the fence of the golf course. Thus, it is my opinion that the warnings signs posted every few hundred feet are not positioned to provide adequate warning, and thus do not adequately protect or warn pedestrians” who are using the walkway.

         With respect to the design of the Brookside Golf Course, appellants submitted the expert declaration of Michael J. Hurdzan. He declared: The area where Jacobo was hit “is inherently unsafe for cars and pedestrians on or along West Drive because of errant golf balls entering that area.” City knew or should have known that there “would be a reasonably high likelihood of golf balls landing in that vicinity. Protection of pedestrians using the [Loop] could have easily been accomplished by good design or remedial measures.” “[G]olf course operators should be vigilant to observe any place on or near their golf course where errant golf balls could hit unsuspecting people or property. This is especially true on a highly traveled area such as the [Loop] where the golf holes and probable play areas are so close together. At the 15th hole, the only barrier between the golf fairway and West Drive is a [six foot, eight inch] fence and some small and somewhat thin foliage trees that are more of a visual barrier than an effective ball stopping barrier.... The trees are not dense enough to stop golf balls, but being a visual barrier, actually contribute to [a problem] because golfers cannot see pedestrians to warn them, nor can pedestrians see all of the golfers or golf balls that could cause them harm. The trees are not effectual safeguards. The fence is too low to provide adequate protection.”

         In further support of their dangerous condition argument, appellants submitted the deposition of Sams in which he testified that he had personally hit golf balls over the fence near the Brookside Golf Course. He had seen about five people hit golf balls over the fence of the 15th hole of the C.W. Koiner Course. This occurred with either a tee shot or a second shot.

         The trial court granted City's motion. In its written ruling, the trial court concluded that City was entitled to trail immunity. As a result, the trial court declined to reach City's other immunity defenses.[4]

         A judgment of dismissal was entered.

         This timely appeal followed.

         DISCUSSION

         I. Standard of Review.

         “An order granting summary judgment is subject to de novo review. [Citation.]” (Moreno v. Quemuel (2013) 219 Cal.App.4th 914, 917-918.) Like the trial court, we employ a three-step analysis: “‘First, we identify the issues framed by the pleadings. Next, we determine whether the moving party has established facts justifying judgment in its favor. Finally, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable, material ...


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