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Court of Appeal, Third District, California.

Margaret Lee JANSEN, Individually and as Conservator, etc., et al., Plaintiffs and Appellants, v. Charles HOWARD III, Defendant and Respondent.

No. C004742.

Decided: November 16, 1989

Bennett & Johnson and Robert B. Galler, Oakland, for plaintiffs and appellants. Greve, Clifford, Diepenbrock & Paras, Anthony C. Diepenbrock, and Gary Scott Decker, Sacramento, for defendant and respondent.

In this case we are required to construe Civil Code section 846 1 “which limits the duty of care owed by ‘an owner of any estate or any other interest in real property’ to persons using the property for designated recreational purposes.”  (Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 704, 190 Cal.Rptr. 494, 660 P.2d 1168, fn. omitted;  further references to section 846 are to this statute.)  Section 846 provides in pertinent part, “This section does not limit the liability which otherwise exists ․ for injury suffered in any case where permission to enter for [a recreational] purpose was granted for a consideration․”  We hold, among other things, this language does not require that the specified consideration be paid to the owner of the real property.


A. Facts

The following material facts are undisputed:

On May 6, 1984, Roger Jansen attended a picnic at Howard Park in the City of Ione.   Howard Park is owned by defendant and leased to the City on a long-term lease.   Under this lease, the City pays defendant $1 per year, pays all property taxes on the land, maintains the property and any improvements on it, and maintains liability insurance on the property naming defendant as the insured party.   In exchange, the City is given the use of Howard Park for “general civic recreational purposes and for athletic events that may be sponsored by and under the supervision of Lessee [the City].”

The picnic Jansen attended was an event which had been held annually in Ione for over a century.   It was sponsored by the City and organized and administered by the Ione Picnic Association.   Admission to Howard Park for the picnic was free.

A traditional feature of the picnic was a horse race, open to all in attendance.   An entrance fee of $6 was charged for the race.   Contestants paid the entrance fee directly to the Ione Picnic Association.   Defendant received no part of it.

Prize money was awarded to the winner;  however, the amount of the prize is not disclosed in the record.

Plaintiff Roger Jansen entered the horse race, paying the $6 entry fee to do so.   During the race his horse veered off the race course, causing him to collide with a tree.   The accident seriously injured him.

B. Procedure

Margaret Lee Jansen, as conservator for Roger Jansen, sued defendant, the Ione Picnic Association, and various individuals, stating claims for negligence on Roger Jansen's behalf and for loss of consortium on her own behalf.

After answering the complaint, defendant moved for summary judgment based on a claim of immunity under section 846.

Plaintiffs filed opposition to the motion asserting three grounds for defendant's liability:  (1) the immunity in section 846 did not apply because the horse race was not a “recreational purpose” since the contestants paid an entry fee and competed for prize money;  (2) the “consideration exception” to landowner immunity set forth in the fourth paragraph of section 846 applied because defendant leased its property to the City for a valid consideration;  (3) the “consideration exception” applied because plaintiff Roger Jansen paid an entry fee for the horse race.

The trial court's order granting summary judgment in favor of defendant stated no issues of material fact were in dispute in that “At the time of Plaintiff's accident, Defendant's property, and location of Plaintiff's accident, was used as [sic ] a recreational purpose as defined in Civil Code Section 846”;  that “The $1.00 per year lease between the City of Ione and Defendant HOWARD PROPERTIES is nominal consideration”;  and that “Defendant HOWARD PROPERTIES did not receive directly or indirectly, any part of [the] $6.00 entrance fee [paid by plaintiff].”

Plaintiffs timely filed notice of appeal from the judgment.


A. Standard of Review

“A motion for summary judgment ‘shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’  (Code Civ. Proc., § 437c, subd. (c).)  The purpose of summary judgment is to penetrate evasive language and adept pleading and to ascertain, by means of affidavits, the presence or absence of triable issues of fact.  [Citation.]  Accordingly, the function of the trial court in ruling on a motion for summary judgment is merely to determine whether such issues of fact exist, and not to decide the merits of the issues themselves.  [Citation.]

“Summary judgment is a drastic measure that deprives the losing party of a trial on the merits.  [Citation.]  It should therefore be used with caution, so that it does not become a substitute for trial.  [Citation.]  The affidavits of the moving party should be strictly construed, and those of the opponent liberally construed.  [Citation.]  Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion.   [Citation.]

“A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action can prevail.  [Citation.]  To succeed, the defendant must conclusively negate a necessary element of the plaintiff's case, and demonstrate that under no hypothesis is there a material issue of fact that requires the process of a trial.  [Citation.]”  (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46;  see Andrews v. Wells (1988) 204 Cal.App.3d 533, 538, 251 Cal.Rptr. 344.)

B. There is No Triable Issue of Fact Respecting Whether Plaintiff's Entry on the Racetrack Was For a Recreational Purpose.

 Plaintiffs argue here, as below, that the act of riding in a horse race was not an activity included in the phrase “recreational purpose” in section 846 because the race was “an athletic event for which entry fees were paid and from which the participants were seeking prize money.”   We do not agree.

Section 846 expressly includes “animal riding” as a “recreational purpose.”  (See fn. 1, ante.)   That is what plaintiff was doing when he was injured.   The question is whether plaintiff was riding for a recreational purpose.  (See, e.g., Gerkin v. Santa Clara Valley Water Dist. (1979) 95 Cal.App.3d 1022, 1027, 157 Cal.Rptr. 612, [only recreational hiking invokes bar of section 846], disapproved on other grounds in Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 707, 190 Cal.Rptr. 494, 660 P.2d 1168.)

We assume that in enacting section 846 the Legislature intended that the statutory language be given its commonly understood meaning.  (Title Ins. & Trust Co. v. County of Riverside (1989) 48 Cal.3d 84, 91, 255 Cal.Rptr. 670, 767 P.2d 1148.)  “Recreation” commonly means “refreshment of the strength and spirits after toil:  DIVERSION, PLAY․”  (Webster's Third New Internat. Dict. (1981) p. 1899.)

We can imagine situations where one would ride an animal for work, not play.   A professional rodeo cowboy injured at a commercial rodeo might well escape the immunity bar of section 846.   But there are no facts on this record suggesting plaintiff's ride was undertaken for profit, not play.   He did not plead that it was.   The modest entry fee of $6 does not negate a recreational purpose, since numerous recreational activities promoted and undertaken for fun (runs, for example) commonly charge entry fees to cover costs.   These same recreational activities (ski races, for example) commonly award prizes of some value, yet the weekend competitor who takes home his or her symbol of victory does not thereby become a professional.

Here the record discloses only that the race was run annually at the city picnic for a modest entry fee and that prize money of undescribed value was awarded.   These facts are insufficient to raise a triable issue of fact as to whether the race was for a recreational purpose;  on these facts, it was.2

C. Plaintiff's Payment of Consideration Entitles Him to Take Advantage of the Exception to the Immunity.

Plaintiffs next argue that if the horse race was for a “recreational purpose” under section 846, the “consideration exception” to the general immunity of landowners under the statute deprives defendant of immunity.   We agree.

Section 846 does not limit a landowner's liability “for injury suffered in any case where permission to enter for [a recreational] 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.”  (See fn. 1, ante.)   In this case, there are two payments of consideration at issue:  plaintiff's payment to the Picnic Association to enter the race, and the City's payment to defendant to lease the property.   The trial court held that plaintiff's payment did not trigger the “consideration exception” because defendant received no part of it, and the City's payment did not trigger the exception because it was “nominal.”

We conclude plaintiff's payment of his entry fee was sufficient to except defendant from the statutory immunity.   Thus, we need not decide whether consideration paid by the City was “consideration ․ paid to said landowner by the state” within the meaning of the statute.   Nor need we decide whether the City's consideration was inadequate because it was “nominal.”

 The trial court misconstrued section 846 when it held that plaintiff's payment of the entry fee was irrelevant to the “consideration exception” because defendant did not receive the money.   In ascertaining the meaning of a statute, we turn first to the language used.  (Title Ins. & Trust Co. v. County of Riverside, supra, 48 Cal.3d at p. 91, 255 Cal.Rptr. 670, 767 P.2d 1148.)   As the Ninth Circuit has recognized, section 846 “․ does not specify to whom the consideration must be paid.”  (Graves v. United States Coast Guard (9th Cir.1982) 692 F.2d 71, 73.)   The Legislature could reason that a citizen who pays consideration for the use of land ought not forfeit his or her common law remedies, and this is so regardless of whether the consideration reaches the pockets of the landowner.3  Thus, under section 846 a citizen who pays consideration to enter land for a recreational purpose is entitled to the exception from immunity even though the landowner does not receive the consideration.   The Ninth Circuit has reached this conclusion and we agree with it.  (See Graves v. United States Coast Guard, supra, 692 F.2d at p. 73.)   Because plaintiff paid consideration to enter defendant's land for a recreational purpose, the “consideration exception” deprives defendant of immunity under section 846.   If the Legislature wishes to limit the consideration exception to cases where the landowner receives the consideration, it need only say so.

Defendant attempts to distinguish Graves and Thompson v. United States (9th Cir.1979) 592 F.2d 1104, which also applied the “consideration exception,” on the ground that their holdings apply only where the facts of the case fit the “pattern of payment” identified in those cases.   In Thompson the plaintiff paid an entry fee to take part in a motorcycle race on federal land;  the organization conducting the race paid consideration to the federal government for the use of the land.  (Id. at p. 1108.)   In Graves, the plaintiff paid consideration to the government's lessee.  (Id. at p. 73.)   Because plaintiff in this case paid his entry fee to the Picnic Association, which was not defendant's lessee and paid defendant no consideration, defendant argues that this case does not exhibit the “pattern of payment” found in Graves and Thompson.

In Thompson the court acknowledged an entry fee had been paid by the plaintiff but appeared to rely conclusorily on the rental paid by the lessee to the federal government.  (592 F.2d at p. 1108.)   However, in Graves the court expressly rejected the landowner's argument that it was immune under section 846 because no consideration was paid to it.  (Graves, supra, 692 F.2d at p. 73.)   We think Graves is the better reasoned case, since Thompson did not even discuss the statutory language.  (See Thompson, supra, 592 F.2d at p. 1108.)

 Defendant also seeks to distinguish Thompson by noting that the landowner there had direct and immediate control over use of its land (ibid.), while defendant allegedly had no control over the picnic or the horse race here.   Defendant points out that under Government Code section 831.7, subdivision (c)(2), the City of Ione may be held liable for plaintiff's injuries.   Defendant has not tendered this argument as one negating defendant's basic tort duty of care;  rather, the argument is made solely as an attack on the “consideration exception” in section 846.   The answer to this claim is that nothing in the language of section 846 restricts the “consideration exception” to situations in which the landowner directly controls the recreational use of the land.   Nor is defendant entitled to immunity on the ground the City of Ione may also be liable for plaintiff's injuries.

Defendant appears to argue in addition that plaintiff's payment of consideration for entry in the horse race is irrelevant to the consideration exception because he paid no fee initially to enter upon defendant's land.   This claim is premised upon the fact there was no admission charge for the picnic, so that plaintiff was allowed to enter upon portions of defendant's land for free.   Defendant relies on Judd v. United States (S.D.Cal.1987) 650 F.Supp. 1503 in support of this argument.   His reliance is misplaced.   In Judd, the plaintiff entered a national forest in California (for which there was no entry fee).   He parked in the free public parking lot of a campground which charged a fee for use of developed camp sites.   He did not use one of these sites but instead hiked to an undeveloped area, where he injured himself.   He argued the consideration exception of section 846 applied because persons who used a designated camp site at the campground paid a fee.   The court rejected this argument because the plaintiff himself did not use a designated camp site and paid no fee at any point within the forest.   (Id. at pp. 1505–1506, 1512.)

 Here, of course, plaintiff paid a fee to enter a race conducted on defendant's property.   Read as a whole, the complaint suggests defendant was allowed to enter the racetrack area for the race only because he paid a fee.   No evidence suggests a contrary conclusion.   It is immaterial that plaintiff was allowed to enter other areas of defendant's land for free, since such a distinction is not found in the statutory language and could be nonsensical in light of the statute's purpose.   For example, by defendant's view, a commercial ski area that owned its land and charged for lift tickets could escape the “consideration exception” simply by allowing its customers to park for free on its land.   Neither the language of the statute nor its apparent purpose countenances such a result.

Defendant raises other contentions in support of the trial court's holding, but as these contentions go to the issue of the consideration paid to defendant by the City, we do not reach them.   For the reasons already given, the fact that plaintiff paid consideration to use defendant's land for a “recreational purpose” compels reversal of the judgment below.


The judgment is reversed.   Appellants shall recover costs on appeal.


1.   At the time of plaintiff's accident, Civil Code section 846 provided:  “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, picknicking, 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 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.”  (Stats.1980, ch. 408, § 1, p. 797.)By amendment effective January 1, 1989, “hang gliding” was added to the list of activities included within “recreational purpose.”  (Stats.1988, ch. 129, § 1.)

2.   Plaintiff appears to raise an additional ground for the claim that the horse race was not for a “recreational purpose”:  because improvements, including the installation of grandstands and fence railings, were made on defendant's property in order to conduct the race, the alleged legislative purpose underlying section 846—“to encourage landowners not to fence their properties to allow the general public to engage in recreation freely”—would somehow be violated if the race were deemed a “recreational purpose.”   To the extent we understand this argument, it is unsupported either by the language of the statute or by authority.

3.   We have looked for legislative history of section 846 shedding light on the issue under discussion but have found none.

SIMS, Associate Justice.

PUGLIA, P.J., and SCOTLAND, J., concur.

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