PATTERSON v. CITY OF LIVERMORE

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

Montgomery L. PATTERSON, Plaintiff and Appellant, v. CITY OF LIVERMORE, Defendant and Respondent.

No. A079918.

Decided: May 27, 1998

Montgomery L. Patterson, for Plaintiff and Appellant. Andrea J. Saltzman, Clifford F. Campbell, Meyers, Nave, Riback, Silver & Wilson, San Leandro, for Defendant and Respondent.

Montgomery L. Patterson appeals from a judgment entered in favor of the City of Livermore (City) after the court sustained a demurrer to his first amended complaint without leave to amend, on the ground that the facts alleged established that appellant was engaged in “mountain biking” when he was injured on land owned by the City, and therefore the City was immune from liability pursuant to Government Code section 831.7.

FACTS

On January 22, 1997, Patterson filed a complaint for damages against the City. The complaint alleged that, on April 29, 1996, Patterson was riding “an ordinary ten speed bicycle” on a paved path at a speed of “approximately 3 miles an hour.”   The complaint alleged that Patterson was unaware that the area adjacent to the path “had been changed from its natural condition and converted to an advanced bike jumping obstacle course consisting in part of a smooth and gradual dirt incline, on the opposite side of which was a pit approximately 4 feet deep, known to local juveniles as ‘the suicide pit [.]’ ” Patterson turned off the path onto a “flat dirt area, and approached an incline” that turned out to be the approach to the “suicide pit.”   He was “unable to stop in sufficient time to avoid the hazard, and his front wheel lodged into the bottom of the pit, catapulting him headfirst over the handlebars, slamming him down onto the ground and upon his right elbow, shattering the head of the radius.”   The complaint further alleged that the City had actual and constructive notice of the existence of the advanced bicycle jumping obstacle course on its property because, approximately one month before Patterson was injured, a minor named David Balemi was injured while riding on the obstacle course.   The city's vice mayor, who lives near the site of the bicycle jumping course, obtained ambulance assistance for Balemi.   Based upon the foregoing facts the complaint alleged causes of action for negligence, failure to warn, third-party premises liability, and nuisance.

The City demurred to the first three causes of action on the ground that Patterson was “mountain biking” and it therefore was immune from liability pursuant to Government Code section 831.7.1  The court sustained the demurrer, finding that, as a matter of law, Patterson was engaged in “mountain biking,” one of the activities listed in section 831.7, but granted leave to amend to allege facts “sufficient to establish that some exception to immunity as defined [by] ․ subdivision (c) of Government Code Section 831.7 applies to his case.”

Patterson filed a first amended complaint.   The amended complaint included the allegation that:  “Neither Plaintiff's bicycle, clothing, and equipment, nor his intentions, skills, training, ability, expectations, or activities included in any aspect, manner, or design, any of the elements of any hazardous bicycling activity whatsoever, including, but not limited to bicycle racing, jumping, mountain bicycling, or ‘BMX’ activity, whether within the meaning of Government Code Section 831.7 or otherwise.”   It further alleged that Patterson had no knowledge of the existence of the bicycle jumping obstacle course on the flat dirt area adjacent to the paved path, and “without any expectation of encountering any risk inherent in the sports of bicycle racing, bicycle jumping, BMX activity, mountain bicycling, or other hazardous activity within the meaning of Government Code Section 831.7(c) or otherwise, came unexpectedly upon the aforesaid ‘suicide pit’․”

The city again demurred, on the grounds that the facts alleged established, as a matter of law, that Patterson was “mountain biking,” and that the first amended complaint failed to allege facts, as opposed to conclusions, establishing any exception to that immunity.   This time, the court sustained the demurrer without leave to amend, and Patterson filed a notice of appeal.2

ANALYSIS

The Government Tort Claims Act (Gov.Code,3 §§ 810-935.7) provides that a public entity may be liable for injury caused by a dangerous condition of public property, if the public entity had actual or constructive notice of the condition a sufficient time prior to the injury to have taken protective measures.  (§§ 830, 835, 835.2.)   However, section 831.7 specifies that a public entity is not “liable to any person who participates in a hazardous recreational activity” for injuries arising out of that activity.   Section 831.7 defines a “hazardous recreational activity” as an activity “which creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury to a participant or spectator.”  (§ 831.7, subd. (b).)  Section 831.7 also contains a non-exclusive list of activities which the Legislature deems to constitute “hazardous recreational activity.”   This list includes “bicycle racing or jumping, mountain bicycling․”  At the end of the list of many other hazardous recreational activities, the Legislature added:  “For purposes of this subdivision, ‘mountain bicycling’ does not include riding a bicycle on paved pathways, roadways or sidewalks.”   (§ 831.7, subd. (b)(3).)

 The dispositive issue in this appeal is whether the allegations of the complaint established, as a matter of law, that appellant was injured while engaged in the hazardous recreational activity of “mountain bicycling.”   (Acosta v. Los Angeles Unified School Dist. (1995) 31 Cal.App.4th 471, 37 Cal.Rptr.2d 171;  Yarber v. Oakland Unified School Dist. (1992) 4 Cal.App.4th 1516, 6 Cal.Rptr.2d 437 [question whether plaintiff engaged in a hazardous recreational activity may be question of fact, but where facts are undisputed it is a question of law].)   For purposes of our review we must accept as true all material facts alleged in the complaint, except for argumentative allegations,4 or conclusions of law.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58;  Sklar v. Franchise Tax Board (1986) 185 Cal.App.3d 616, 621, 230 Cal.Rptr. 42.)

The complaint alleged that appellant was riding an “ordinary bicycle” at approximately three miles an hour on a paved path when he veered off the path onto an adjacent “flat dirt area” and rode up a gradual incline, which, unbeknownst to him, was a jump ramp, and was unable to stop before he fell into the “suicide pit.”   The trial court interpreted section 831.7, subdivision (b)(3) to define “mountain bicycling” as any bicycle riding on an unpaved surface.   It therefore held that the allegation that appellant had veered off the path established, as a matter of law, that appellant was injured while “mountain bicycling,” and that the immunity set forth in section 831.7 applied to all the alleged causes of action.   Appellant contends that the activity alleged in his complaint does not, on its face, constitute “mountain bicycling” because it alleges that he was riding an ordinary ten-speed bicycle on a flat dirt area at a leisurely pace.   The trial court relied solely upon the factual allegation that appellant was riding on an unpaved surface when he was injured to establish as a matter of law that he was “mountain bicycling.”   Thus, we must decide whether the court correctly interpreted section 831.7, subdivision (b)(3) to define “mountain bicycling” as any bicycling on an unpaved surface.

“In determining the meaning of a statute, we are guided by the following principles:  Our first task in construing a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law.   In determining such intent, a court must look first to the words of the statute themselves, giving to the language its usual and ordinary import․  The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible.   Where uncertainty exists, consideration should be given to the consequences that will flow from a particular interpretation.   Both the legislative history of the statute and the wider historical circumstance of its enactment may be considered in ascertaining the legislative intent.”  (Central Pathology Service Medical Clinic, Inc. v. Superior Court [Los Angeles ] (1992) 3 Cal.4th 181, 186-187, 10 Cal.Rptr.2d 208, 832 P.2d 924, internal quotation marks and citations omitted.)

 The general legislative purpose in enacting section 831.7 was to provide public entities with a qualified immunity similar to that provided by the existing law in 1983 to private property owners who permit people to enter or use their land for recreational purposes.   Under then existing law private property owners owed no duty to keep land safe or warn of dangerous conditions unless, among other things, the owner willfully or maliciously failed to warn of a dangerous condition.  (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 225-226, 38 Cal.Rptr.2d 35.)   The purpose of the non-exclusive list of specific hazardous recreational activities is to allow the public entity to assert this qualified immunity without requiring a determination that the activity “creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury to a participant or spectator,” when the plaintiff is injured while engaging in a listed activity.  (§ 831.7, subd. (b).)  Even if the recreational activity is not listed, the qualified immunity is nevertheless available to the public entity if it is determined that the activity creates a “substantial ․ risk of injury.”  (§ 831.7, subd. (b).)

With the general legislative purpose in mind, we turn to the specific question whether section 831.7 defines “mountain bicycling” as any bicycling on an unpaved surface.   Looking first to the words of section 831.7, it lists three types of bicycling in the list of “hazardous recreational activities”:  bicycle racing, bicycle jumping, and mountain biking.  (§ 831.7, subd. (b)(3).)  “Bicycle racing” would commonly be understood to involve high speed competitions against other riders, or a clock, usually on lightweight bicycles designed to enhance speed.  “Bicycle jumping” is commonly understood to involve the use of small-frame bikes also known as motor-cross bicycles, or “BMX” bicycles, for jumping and riding obstacle courses.  (See also Branco v. Kearny Moto Park, Inc. (1995) 37 Cal.App.4th 184, 43 Cal.Rptr.2d 392 [describing the sport of BMX cycling].)  “Mountain bicycling” commonly connotes riding bicycles with wide nubby tires designed for off-road use, at high speeds, on mountainous or steep terrain.   Any other bicycling activities not described by these three categories does not constitute a “hazardous recreational activity,” unless the particular facts establish that it is an activity “which creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury to a participant or spectator.”  (§ 831.7, subd. (b).)

The bicycling activity alleged in the original and first amended complaint does not fit the plain and common usage of the term “mountain bicycling,” because appellant was not riding a mountain bicycle on mountainous or steep terrain, at high speed.5  The court, nevertheless relied on the following language to conclude that, as a matter of law, appellant was “mountain biking”:  “For purposes of this subdivision, ‘mountain bicycling’ does not include riding a bicycle on paved pathways, roadways or sidewalks.”   (§ 831.7, subd. (b)(3).)   The court interpreted this exclusion to define, by inverse implication, mountain bicycling as any bicycle riding on unpaved surfaces.   This interpretation is not consistent with the plain meaning of the statutory reference to “mountain bicycling” because it effectively eliminates the modifier “mountain” and substitutes for it “off-pavement” or “off-road.”   If the Legislature intended to designate any bicycling on an unpaved surface a hazardous recreational activity, it would likely not even have listed mountain bicycling, which is a narrower distinct sport.   It could simply have listed bicycling on unpaved surfaces, or “off-road” bicycling.   Instead, it used words of exclusion to define only an activity not included in the sport of “mountain biking.”

Although we base our construction of section 831.7 on the common usage and understanding of the statutory language, the legislative history of the amendment to section 831.7 which, in 1995, added “mountain bicycling” to the list of activities, also lends some support to our conclusion that the Legislature did not use “mountain bicycling” to refer to any bicycling on unpaved surfaces.   One argument in favor of adding “mountain bicycling” to the list of “hazardous recreational activities, stated:  “ ‘Due to the speed of [mountain] bicycles on rough terrain, the regularity and increasing incidence of solo-bicycle accidents, ․ and the desire by many riders to achieve a high speed on very steep trails, this is an inherently dangerous activity.’ ”  (Assem.  Policy Com. Analysis, Assem.   Com. on Judiciary regarding Assem.   Bill No. 700 dated April 19, 1995.)   This description of mountain bicycling is much narrower than the definition the City advances, i.e., any bicycling on an unpaved surface.   We conclude that the fact that appellant was riding a bicycle on an unpaved surface does not, as a matter of law, establish that was he “mountain bicycling.”

 The City suggests that even if the activity alleged in the first amended complaint does not, as a matter of law, constitute “mountain bicycling,” it constitutes “bicycle jumping,” because it alleges appellant was injured while riding up a ramp on a bicycle jumping course.   The difficulty with this argument is that the complaint alleges that appellant was unaware that he had ridden onto an advanced bicycle obstacle course, and unaware that the “gradual incline” he rode up was designed as a jump.   The City, in reliance upon Iverson v. Muroc Unified School Dist., supra, 32 Cal.App.4th 218, 222-225, 38 Cal.Rptr.2d 35, argues that it makes no difference whether appellant intended to be bicycle jumping, or unwittingly rode up the incline and fell.   It argues that if he fell while riding up a ramp to a bicycle jump, he was bicycle jumping.  Iverson concerned the very different question whether a participant in required physical education classes is engaged in “recreational” activities.   The court held only that the statutory phrase “ ‘voluntarily in the place of risk’ ” applies only to spectators, and did not therefore dispose of the question whether a participant in compulsory sports is engaging in “recreational” activity.  (Ibid.)

Nevertheless, as a matter of fact, it is difficult to conceive of how appellant could not have been aware that the “incline” he rode upon was an artificially constructed jump ramp.   Moreover, if all of the surrounding circumstances, including the physical attributes of the site, would objectively indicate to a reasonable person that it was a bicycle jumping course, or that the “gradual incline” was actually an artificially constructed jumping ramp, appellant cannot rely on his unreasonable subjective lack of intent to bicycle jump, as a basis for avoiding application of the immunity.6  It is premature, however, to decide based upon the allegations of the complaint that he was, as a matter of law, bicycle jumping.7

 The City also suggests that allegations of the complaint establish the applicability of section 831.4, which, in relevant part, provides immunity for public entities from liability for injuries incurred on unpaved roads which provide access to certain activities including vehicular riding or recreational areas, and any trail, paved or unpaved, used for the same purposes.  (See Armenio v. County of San Mateo (1994) 28 Cal.App.4th 413, 33 Cal.Rptr.2d 631.)   The complaint however, specifically alleges that appellant had veered off the paved path and onto a flat dirt area when he was injured.   It contains no allegation that appellant was on an unpaved road, path or trail when he was injured.   The allegation that he was riding up a “gradual incline” cannot reasonably be construed to describe a “trail.”   Therefore, the allegations of the complaint simply do not support the application of the immunity established by section 831.4 on demurrer.

 The court did, however, correctly sustain the demurrer to the allegations of the first amended complaint seeking to invoke the exception to the qualified immunity that applies “where the public entity fails ‘to guard or warn of a known dangerous condition ․ that is not reasonably assumed by the participant as inherently a part of the hazardous recreational activity out of which the damage or injury arose.’  ” (DeVito v. State of California (1988) 202 Cal.App.3d 264, 271-272, 248 Cal.Rptr. 330;  § 831.7, subd. (c)(1).)   The first amended complaint did not allege any facts to support the conclusion that falling off the ramp into a pit is not a risk reasonably assumed by a participant in mountain bicycling or bicycle jumping.   Instead, it merely alleged in conclusory fashion that the “site presented risks to ordinary bicyclists, bicycle racers, and to mountain bicyclists which were not inherent risks of those activities,” and that appellant rode onto it “without any expectation of encountering any risk inherent in the sports of bicycle racing, bicycle jumping, BMX activity, mountain bicycling, or other hazardous activity within the meaning of Government Code Section 831.7(c)․”

 The question, for the purpose of applying this exception, is not “what the particular plaintiff before the court did or did not assume about the nature of the activity or the risk involved.   Rather, the statute refers to the reasonable assumption of the public generally (i.e., what a reasonable participant would assume to be inherent in the activity)․  [A] plaintiff's knowledge of any particular risks is irrelevant.”  (Perez v. City of Los Angeles (1994) 27 Cal.App.4th 1380, 1387, 33 Cal.Rptr.2d 55.)   The risk of not making a jump successfully, and falling, is “reasonably assumed” by a participant in the sport of bicycle jumping.   Similarly, the risk of encountering unexpected changes in elevation or terrain, whether natural or unnatural, is inherent in the sport of mountain bicycling.  (See Perez v. City of Los Angeles, supra, 27 Cal.App.4th 1380, 33 Cal.Rptr.2d 55 [participant in tree rope swinging reasonably assumes risk that one may fall down from a greater height than the starting point even if participant unaware of steep drop off ledge].)   We therefore uphold the order sustaining the demurrer to the first amended complaint to the extent it held that appellant failed to allege facts establishing that the exception set forth in section 831.7, subdivision (c)(1) applies if the activity alleged in the complaint is found to constitute a “hazardous recreational activity.”

CONCLUSION

The judgment is reversed, and the matter is remanded for further proceedings consistent with the view expressed in this opinion.   Each party to bear its own costs.

FOOTNOTES

1.   The City also demurred to the nuisance cause of action on various grounds, including failure to allege special injury, or that the nuisance affected the enjoyment of Patterson's own property.   The demurrer was sustained with leave to amend, but Patterson merely restated the nuisance cause of action in his first amended complaint without amending it.   On appeal he challenges the court's ruling on immunity, but not its ruling that he failed to allege essential elements of a cause of action for nuisance.

2.   The appeal was prematurely filed from the order sustaining the demurrer, before judgment was entered, but we exercise our discretion to judicially notice the judgment subsequently entered.  (See Giannuzzi v. State of California (1993) 17 Cal.App.4th 462, 464, fn. 2, 21 Cal.Rptr.2d 335.)

FN3. All subsequent statutory references are to the Government Code unless otherwise indicated..  FN3. All subsequent statutory references are to the Government Code unless otherwise indicated.

4.   For example, the allegations of the first amended complaint that appellant was not engaged in mountain bicycling fall into the category of argumentative allegations, and must be disregarded if the facts alleged are to the contrary.

5.   The fact that appellant was not riding a mountain bicycle is not, of course, dispositive of the question whether appellant was “mountain bicycling.”   Appellant's contention is that the fact that he was riding on an unpaved surface does not establish, as a mater of law that he was “mountain bicycling,” and that none of the other facts alleged, including the type of bicycle, and how he was riding it, i.e., at a leisurely pace on flat terrain, establish that he was “mountain bicycling” as a matter of law.

6.   This would be akin to a person, who puts on skis and stands at the head of ski trail, and begins to slide down it, contending he was not “skiing” because he did not intend to go down the hill.

7.   The city argues that the complaint has been carefully drafted to avoid application of any governmental immunity on demurrer.   The solution is not for this court to unjustifiably expand the statutory definition of mountain bicycling, or to speculate about facts outside the allegations of the complaint, but rather for the City to avail itself of the summary judgment procedure that is designed to “pierce” the pleadings, and identify whether there is any substance to the allegations.

STEIN, Associate Justice.

STRANKMAN, P.J., and DOSSEE, J., concur.