Skip to main content


Reset A A Font size: Print

Court of Appeal, Fifth District, California.

Jose ORNELAS, a Minor, etc., Plaintiff and Appellant, v. Clinton RANDOLPH, Defendant and Respondent.

No. F015592.

Decided: May 20, 1992

Bauman & Rose and Ann Bryce Cushing, Beverly Hills, Gonzales Funes, Los Angeles, Elke Gordon Schardt, Saugus, for plaintiff and appellant. Mills, Lane & Derryberry, George M. Stevens, Jr., and David F. Boettcher, Fresno, for defendant and respondent.


Appellant Jose Ornelas, a minor acting by and through his guardian ad litem Rita Ornelas, filed a complaint for personal injury against respondent Clinton Randolph.   Appellant alleged in the complaint that he was injured while he was playing with his friends on the unfenced property of respondent which was used to store farm equipment.   Respondent answered and filed a motion for summary judgment alleging several defenses, including Civil Code section 846 immunity.1  Summary judgment was granted in respondent's favor based on a showing of the “recreational use of property” defense under section 846.   We reverse.


Respondent owns a large parcel of property which has three areas.   One area is a field plowed and furrowed for crops.   One area contains a rental house.   The third area is an open area which abuts the back yards of several houses.   On this strip of land, respondent stored many pieces of old, rusty farm equipment, miscellaneous other equipment, and irrigation pipes and standards.   The equipment had many sharp edges.

On January 2, 1989, eight-year-old appellant was with five children on the property where the farm equipment was stored.   Appellant had been told by his mother not to go to this property.   Appellant was tired, so he sat down on the property and played with a hand-held toy he had received.   His friends asked him to play with them, but appellant declined.   He was “just right there seeing them.”   His friends were playing on a piece of equipment when a pipe fell on and injured appellant.


“Summary judgment is a drastic procedure which should be used with caution to avoid its becoming a substitute for trial.  [Citation.]   On appeal, all intendments are in favor of the party who opposed the motion.  [Citation.]   Nevertheless, a summary judgment will not be reversed absent an abuse of the trial court's discretion.  [Citation.]”  (Domingue v. Presley of Southern California (1988) 197 Cal.App.3d 1060, 1063, 243 Cal.Rptr. 312.)

Section 846 provides:

“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 such premises to persons entering for such purpose, except as provided in this section.

“A ‘recreational purpose,’ as used in this section, includes such activities 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, winter sports, and viewing or enjoying historical, archaeological, scenic, natural, or scientific sites.

“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 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.”

“Section 846 constitutes an exception to the general rule that a private landowner owes a duty of reasonable care to any person who enters his or her property.”  (Valladares v. Stone (1990) 218 Cal.App.3d 362, 366, 267 Cal.Rptr. 57.)  “ ‘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.  [Citation.]   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.  [Citation.]’ ”   (Myers v. Atchison, Topeka & Santa Fe Railway Co. (1990) 224 Cal.App.3d 752, 758, 274 Cal.Rptr. 122.)

In his answer and his motion for summary judgment, respondent claimed section 846 as a defense.   He argued that his property was the type of property intended to be covered by section 846 and that appellant entered the property for a recreational purpose.   In opposition, appellant asserted that respondent's property was not suitable for recreational use and that appellant did not intend to use the property for his recreation when he entered it.

 Application of section 846 is not limited to land in its natural condition.  (Domingue v. Presley of Southern California, supra, 197 Cal.App.3d 1060, 1067, 243 Cal.Rptr. 312.)   Neither is it limited to rural as opposed to urban land.   The fact the property is adjacent to a residential subdivision does not bar application of section 846.  (Valladares v. Stone, supra, 218 Cal.App.3d 362, 370, 267 Cal.Rptr. 57.)   On the other hand, “ ‘[t]he Legislature obviously did not intend to allow or encourage the general public to recreate free of charge on all privately owned property of every kind, nature and state of development.’ ”  (Wineinger v. Bear Brand Ranch (1988) 204 Cal.App.3d 1003, 1009–1010, 251 Cal.Rptr. 681.)   The critical, threshold question is whether the Legislature intended section 846 to apply to the instant type of situation.   Was respondent's land suitable or intended for recreational use?

“In Potts v. Halsted Financial Corp. (1983) 142 Cal.App.3d 727, 730, [191 Cal.Rptr. 160] ․, [the appellate court] held that application of the statute to preclude liability for negligence where the injury was caused by a fall from the roof of a building under construction on beachfront property in a residential area would not promote the statute's purpose.   Similarly, in Paige v. North Oaks Partners (1982) 134 Cal.App.3d 860, 865 [184 Cal.Rptr. 867] ․, [the appellate court] held that the statute did not preclude liability where a child was injured jumping his bicycle over an open trench in a temporary construction project in an urban shopping center.   The Paige court stated:  ‘Here, although plaintiff's purpose was undoubtedly recreational, the nature of the property in question shows that it is not within the intent of section 846.   We find nothing in the legislative history to suggest that the Legislature intended to relieve all landowners of liability to trespassing children, whose activities usually are recreational.   The fact that the words of section 846 could constitutionally be interpreted literally so as to apply to this case [citation], does not mean that they should be so interpreted.’  [Citation.]

“In Paige v. North Oaks Partners, supra, the court discussed the legislative intent in the following terms:  ‘In attempting to provide access for the public to open spaces for recreational use, the Legislature could not have intended to encourage owners and building contractors to allow children to play on their temporary construction projects.’  [Citation.]”   (Domingue v. Presley of Southern California, supra, 197 Cal.App.3d 1060, 1067–1068, 243 Cal.Rptr. 312.)

The facts of Domingue v. Presley of Southern California, supra, 197 Cal.App.3d 1060, 243 Cal.Rptr. 312, were as follows:  “Appellant, a minor, was injured ․ when he rode his bicycle off a six-foot drop in a graded area of property belonging to respondent.”  (Id. at p. 1063, 243 Cal.Rptr. 312.)   Appellant sued respondent.   Respondent raised section 846 as a defense, and his motion for summary judgment was granted on that basis.  (Ibid.)  The appellate court reversed the summary judgment.

“It is the moving party's burden in this case to provide evidence of the defense they are attempting to establish.   Their evidence establishes that this is a construction site where the land has been developed preparatory to erection of houses.   It does not establish as a matter of law that this is a recreational land.   In addition to the question of for what purpose appellant was on the accident site there is, at the very least, a triable issue of fact as to whether this site is an active construction site, thus land withdrawn from recreational use.   The fact that children had used this land in the past, and that the owner had not yet fenced it, does not mean that it was still recreational land at the time of appellant's accident.   Nothing, however, in this case serves the public policy behind Civil Code section 846 ‘ “to afford these property owners a modicum of protection from tort liability [to] encourage such owners to keep their lands in a natural, open and environmentally wholesome state.” ’  [Citation.]   At the time of the accident this land could by no stretch of the imagination be considered recreational land, nor was it a project that was graded and completed or then abandoned to return to nature.   It was developed land.   As noted in Potts [Potts v. Halsted Financial Corp., supra, 142 Cal.App.3d 727, 191 Cal.Rptr. 160], the Legislature could not have intended the Civil Code section 846 immunity to apply to such a property:  ‘A grant of immunity would merely encourage the negligent maintenance of construction sites, without, however, achieving the specific public benefit the Legislature envisioned.’  [Citation.]   This case far more clearly fits that category than the category of recreational land, as the respondents have attempted to do.   It is highly developed land which just did not yet have a house built on it.   The land had plainly been withdrawn from public recreational use.”  (Domingue v. Presley of Southern California, supra, 197 Cal.App.3d 1060, 1070, 243 Cal.Rptr. 312.)

In Wineinger v. Bear Brand Ranch, supra, 204 Cal.App.3d 1003, 251 Cal.Rptr. 681, Wineinger was killed when the car in which he was riding careened over a cliff in a residential housing tract.   The street had been paved in the development, but it remained unlighted and unstriped.   The pavement ended abruptly at the crest of the hill with a 30–foot ravine a few feet ahead.   Wineinger's heirs sued and won a money judgment.   On appeal the developers of the land asserted the trial court erred in refusing to give an immunity instruction pursuant to section 846.   The appellate court found that no instruction was required.  “When this accident occurred, the area in question could by no means be considered recreational land.   It was not a completely graded and completed project, but it had not been abandoned to nature either.”  (Id. at p. 1010, 251 Cal.Rptr. 681.)

Respondent argues that cases involving construction sites have no application here.   He asserts that the “setting most similar to this case” is Smith v. Scrap Disposal Corp. (1979) 96 Cal.App.3d 525, 158 Cal.Rptr. 134, which involved a designated storage area within a marine terminal.   However, Smith does not address whether that land was suitable for recreational use and thus is of little help to our inquiry.

Respondent also likens the instant case to Valladares v. Stone, supra, 218 Cal.App.3d 362, 267 Cal.Rptr. 57, and Myers v. Atchison, Topeka & Santa Fe Railway Co., supra, 224 Cal.App.3d 752, 274 Cal.Rptr. 122.

Valladares v. Stone, supra, 218 Cal.App.3d 362, 267 Cal.Rptr. 57, presented the case of four-year-old Miguelangel who was injured when he fell from a tree he had climbed;  the tree was located on a vacant lot adjacent to a residential housing development.  (Id. at p. 365, 267 Cal.Rptr. 57.)   Summary judgment was granted in favor of the landowner pursuant to section 846.   The appellate court upheld the summary judgment.   The property was in an unimproved, undeveloped state, and defendant had done nothing to withdraw his land from public recreational access.  (Id. at p. 371, 267 Cal.Rptr. 57.)

In Myers v. Atchison, Topeka & Santa Fe Railway Co., supra, 224 Cal.App.3d 752, 274 Cal.Rptr. 122, Myers was injured “when the motorcycle she was riding fell into a ditch created by a drainage culvert underlying Santa Fe's tracks.”  (Id. at p. 760, 274 Cal.Rptr. 122.)   The jury determined Myers was on the property for a recreational purpose.   The trial court determined as a matter of law that the premises were suitable for recreational purposes.   Myers appealed, claiming the area was not suitable for recreational purposes.   The appellate court disagreed and upheld the judgment.   The Myers court distinguished that case from the construction site cases in which the plaintiffs were injured by the building activity.  “The aspect of Santa Fe's right-of-way that purportedly makes it unsuitable for recreational use is the potential for injury or death from being struck by a passing train․   Myers was not injured by a train, but by her use of Santa Fe's property to ride a motorcycle.”  (Id. at pp. 760–761, 274 Cal.Rptr. 122.)   The appellate court noted the tenuous connection between the accident that occurred and the obvious danger presented by an active railroad right-of-way.   (Id. at p. 761, fn. 2, 274 Cal.Rptr. 122.)

 The instant case is more akin to the construction site cases than to Valladares and Myers.   The strip of land utilized to store respondent Randolph's equipment had no legitimate recreational use.   Respondent withdrew this property from any such use when he stored his dangerous equipment on it.   The connection between the accident injuring appellant and the danger presented by storing farm equipment on a strip of land is obvious.   The Legislature could not have intended to encourage farmers to allow their farm equipment storage areas to be used for recreation.   Granting an immunity pursuant to section 846 here would tend to encourage the negligent storage of dangerous equipment without achieving the benefit the Legislature sought to provide.   This could not have been the type of land and the type of activity the Legislature sought to immunize when it passed section 846.2

 Since we determine respondent's property was not suitable for recreational use, we need not address the question of whether appellant's use of the property was for a recreational purpose.   We note that appellant's sole argument in his opening brief is there was a triable issue of fact whether he entered respondent's property with the intent to engage in recreational activity.   However, respondent does address the suitability issue in his brief.   Additionally, we notified the parties of our consideration of this specific issue, giving each a further opportunity to brief it.3

The strip of land used to store Randolph's farm equipment was not suitable for recreational use.  Section 846 immunity does not apply.   The court erred in granting summary judgment.


 The summary judgment is reversed.   Because appellant failed to raise the precise, dispositive issue in his opening brief, each party shall bear his own costs on appeal.


1.   All future code references are to the Civil Code unless otherwise noted.

2.   This case is properly resolved as a question of law involving statutory interpretation.  (See Myers v. Atchison, Topeka & Santa Fe Railway Co., supra, 224 Cal.App.3d 752, 761, 274 Cal.Rptr. 122.)

3.   Our disposition of this appeal on the threshold question of suitability for recreational use is particularly appropriate in light of our role in reviewing the grant of a summary judgment;  we render an independent review of the correctness of the lower court's ruling in its entirety, looking beyond the court's reasoning or rationale.  (See California Aviation, Inc. v. Leeds (1991) 233 Cal.App.3d 724, 731, 284 Cal.Rptr. 687.)

VARTABEDIAN, Associate Justice.

DiBIASO, Acting P.J., and HARRIS, J., concur.

Copied to clipboard