Reset A A Font size: Print

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

Neil YOUNG, Plaintiff and Appellant, v. STATE of California, Defendant and Respondent.

Civ. 26154.

Decided: March 08, 1982

Sheeks, Oswald & Bassing and Peter J. Bassing, San Rafael, and Brian M. Sax, San Francisco, for plaintiff and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Dennis G. Fry, Deputy Atty. Gen., for defendant and respondent.

The sole question presented is whether the trial court in granting a summary judgment correctly interpreted Civil Code section 846 1 in holding the State was immune from liability for personal injuries suffered by Neil Young when he struck his head on a submerged object at a State owned beach.   Young was engaged in “water sports,” a recreational activity of the type covered by Civil Code section 846, when injured.

Young contends the immunity granted by section 846 does not apply to a “public entity,” does not bar recovery from the State of California which is granted most specific and varied forms of immunity under the California Tort Claims Act (Gov.Code, §§ 810 et seq.).


In June 1976 Neil Young was swimming at Bolinas Beach, Marin County, when he struck his head on a submerged object and sustained severe injuries which have left him quadriplegic.   Young identified the object he hit (in his deposition) as a chunk of concrete about a foot in diameter and a foot high and at a depth of about three feet.   It appeared to have broken off a seawall or “groin” extending out from beach into the water.   This groin had been built in the 1880's and had been cast in concrete in the 1930's and 40's, and was in a deteriorating condition.   Young has complained for damages for personal injuries alleging this constituted a dangerous condition (Gov.Code, § 830, subd. (a)) and no warnings of the danger were posted at the scene.

In its first motion for summary judgment, the State of California filed a declaration by a state land commission official representing that the State had not been responsible for issuing permits or for the construction of any structure in the area of the accident.   This motion was denied on the basis that triable material issues of fact existed under Civil Code section 846 as to whether the State's conduct was willful or malicious in allowing the alleged dangerous condition to exist, whether the State had knowledge of the property's condition, whether the property's condition was natural and unimproved and whether the proximate cause of Young's injury could be shown.2

After the denial of the State's motion, Young in answer to interrogatories admitted he did not claim to qualify for any exceptions appearing in Civil Code section 846 to the grant of immunity given to “an owner of any estate” against claims for damages by recreational users of the property.   Specifically Young said he did not claim (1) the State willfully or maliciously failed to guard against the dangerous condition, (2) or that he paid a consideration to enter the premises where the injury occurred, (3) or that he was expressly invited to the premises.   Young also admitted he was engaged in “water sports” when he was injured.

Based upon these responses, the State moved a second time for summary judgment.   Young defended urging the nonapplicability of Civil Code section 846 to a public entity, the State of California.   The trial court granted summary judgment holding Civil Code section 846 applied to governmental entities and barred Young's action.



Whether Civil Code section 846 was intended to apply to land publicly held as well as to that held in private hands is a question already addressed by several California Courts of Appeal with conflicting results.   In Nelsen v. City of Gridley, 113 Cal.App.3d 87, 169 Cal.Rptr. 757, the court after a thorough analysis of the issues held that Civil Code section 846 was not applicable to public entity land owners.3

The contrary view has been expressed by other California appellate courts.   The leading case is English v. Marin Mun. Water Dist., 66 Cal.App.3d 725, 136 Cal.Rptr. 224, followed by Blakley v. State of California, 108 Cal.App.3d 971, 167 Cal.Rptr. 1;  Moore v. City of Torrance, 101 Cal.App.3d 66, 166 Cal.Rptr. 192;  Gerkin v. Santa Clara Valley Water Dist., 95 Cal.App.3d 1022, 157 Cal.Rptr. 612.

Sheer numbers point to a quiet acceptance of the majority view but several cogent and weighty rules of law as well as the authoritative analysis of the statute here under inspection indicate that the appeal court in Nelsen v. City of Gridley, supra, has captured the true legislative intent.

In the first place Civil Code section 846 limits the duty of an owner of any estate in real property with respect to persons entering it or using it without express invitation or payment of a consideration to do so for a variety of recreational uses including water sports, the species here involved.   The owner is not relieved of liability for a “willful or malicious failure to guard or warn against a dangerous condition” on the property, yet section 846 specifically provides that the owner “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.”   And permission to enter for the specified purposes does not give “the person to whom permission has been granted the legal status of an invitee or a licensee to whom a duty of care is owed.”   The legislative intent behind section 846 has been found in a series of cases to be as follows:  the intent of the California Legislature in adopting section 846 was to encourage landowners to open their property to the public for recreation.  (Phillips v. United States, 590 F.2d 297, 299;  Simpson v. United States, 652 F.2d 831, 833.)   Such encouragement was necessitated by the threat of tort liability which in recent years has led landowners to bar people from trespassing on their land.  (Parish v. Lloyd, 82 Cal.App.3d 785, 787–788, 147 Cal.Rptr. 431;  Gerkin v. Santa Clara Valley Water Dist., 95 Cal.App.3d at p. 1026, 157 Cal.Rptr. 612, and cases cited.)   And as this court stated in Smith v. Scrap Disposal Corp., 96 Cal.App.3d 525, 529, 158 Cal.Rptr. 134:  “The reason the Legislature enacted section 846 was to reduce landowner tendency to remove real property from recreational access.   [Citations.]  Such exemption from tort liability promotes the use of private land for general public recreational use.  [Citations.]”  Such a legislative intent is not congruent with the well recognized purposes of the California Tort Claims Act.  (Gov.Code, §§ 810–840.6.)   Not only are the legislative purposes nonconformable, but section 846 appears to be actually inconsistent with the dangerous condition provisions of chapter 2 of the California Tort Claims Act which clearly impose a duty on public entities to take reasonable precautions to prevent injuries from dangerous conditions to their property subject only to stated exceptions and immunities in chapter 2.   (See Hill v. People ex rel Dept. of Transportation, 91 Cal.App.3d 426, 154 Cal.Rptr. 142, which held that the immunities relating to issuance of permits as provided by chapter 1 of the Torts Claim Act (Gov.Code, § 818.4) were not to be applicable to dangerous conditions liability based upon chapter 2.)

Moreover, the specific provisions of the Act relate to recreational property in ways that differ from Civil Code section 846.   For example, Government Code section 831.2 provides immunity for natural conditions of unimproved public property including lakes, streams and beaches.  Government Code section 831.4 provides immunity for unpaved access roads and recreational trails.  Government Code section 831.6 provides immunity for unimproved and unoccupied portions of state lands.  Government Code section 831.8 grants a qualified immunity relating to reservoirs and canals.   None of these immunities are in any way related to a recreational use of the species of property or conditions involved.

To further illustrate this conflict, Government Code section 831.2 provides:  “Neither a public entity nor a public employee is liable for an injury caused by a natural condition of any unimproved public property, including but not limited to any natural condition of any lake, stream, bay, river or beach.”

This section is specific as to ownership of the property and as to the type of condition to which the immunity applies, to wit, a natural condition.   Yet no restrictions whatsoever are specified as to the purpose, recreational or otherwise, for which a potential claimant enters.

Government Code section 835, “Conditions of liability,” is specific as to ownership of the public property but general as to the definition of “dangerous conditions.”   There is no requirement that they be either natural or artificial or that the use for which the potential claimant entered is of a recreational nature.   Furthermore, we must look to Government Code section 830, subdivision (a), for a definition of “dangerous condition” where a public entity owns or controls the land occupied.   No such definitional limitation is to be found in section 846.   Professor Van Alstyne (whose various works are relied upon by each party) most recently observed:

“In view of the comprehensive and specific coverage of immunities and liabilities on publicly owned recreational property included in the Tort Claims Act, it seems doubtful that CC § 846 was intended to constitute an additional statutory immunity or defense that may be asserted by public entities.   While nothing in the Tort Claims Act precludes the invocation of immunities in statutory provisions outside the act (see § 2.29), the text of CC § 846 omits any mention of public entities and thereby suggests a legislative intent that it extend the immunity only to private property owners.   Moreover, the Tort Claims Act, being the more specific body of law, ordinarily would be deemed to control, where applicable, over the more general and largely inconsistent rules provided by CC § 846.   See Govt C § 815(b) (statutory liabilities of public entities under Tort Claims Act declared ‘subject to any immunity of the public entity provided by statute,’ except ‘as otherwise provided by statute ’) (emphasis added).”  (Van Alstyne, California Government Tort Liability Practice (Cont.Ed.Bar 1980) p. 269.)

Van Alstyne takes a position most critical of the majority view.   He tartly observes:

“If the quality and thoroughness of judicial reasoning has any bearing on the authoritative standing of the conclusions reached, however, the relevant decisions leave something to be desired.  English v. Marin Mun. Water Dist. (1977) 66 C.A.3d 725 [136 Cal.Rptr. 224] ․ apparently (i.e., the facts of the case are ambiguous) held that CC § 846 limited governmental liability;  but the opinion does not address or analyze the issue, and the holding seems to be an assumption rather than a reasoned conclusion.

“Moore, supra [Moore v. City of Torrance, supra, 101 Cal.App.3d 66, 166 Cal.Rptr. 192], ignores the fact that the issue was not addressed in English and treats that decision as having settled the question conclusively.   Unfortunately, the only attempt at textual analysis in Moore can be accurately described as pure ipsedixit coupled with a passing mention of the phony double fiction that the legislature, being aware of the non-decision in English, intended to ratify its holding by failing to overrule the English case when subsequently amending CC § 846 in other textually irrelevant particulars.

“Finally, it should be noted that the even more recent decision in Blakley v. State (1980) 108 C.A.3d 971 [167 Cal.Rptr 1] ․ in what is clearly obiter dictum wholly unnecessary to the decision, also states that CC § 846 is available to the state as a defense to an action based on the dangerous condition of state property.   This statement is not supported by citation of any authority other than an erroneous reference to Govt C § 815(b).”   (Cont.Ed.Bar, Civil Litigation Reporter, Vol. II, No. 8 (Nov. 1980) pp. 134–135.)

Professor Van Alstyne regards English v. Marin Municipal Water District, supra, and its progeny as “seriously flawed in substantive respects,” citing these specifics:  (1) Moore and Blakley rely upon an erroneous interpretation of Government Code section 815, subdivision (b).  (2) The cited cases ignore the fact that Civil Code section 846 does not provide for an “immunity” or “defense” and thus is not within the purview of the language of Government Code section 815, subdivision (b), in any event.   On the contrary, Civil Code section 846 by its terms constitutes a general statutory limitation on the duty of “an owner of any estate in real property” with respect to a gratuitous and uninvited recreational user.   The Torts Claim Act on the other hand spells out in specific and comprehensive terms the duties as well as the defenses and immunities available to a public entity charged with a dangerous condition of real or personal property owned or controlled by that public entity.  (Gov.Code, § 830, subd. (c).)  (3) Professor Van Alstyne points out that the majority view ignores the fact that Civil Code section 846 and Government Code sections 830–840.6 “were both enacted by the same 1963 Legislature ․ CC section 846 would be in clear conflict with the Tort Claims Act if it applied to public entities.”   Thus it is an example of what he terms a “classical case” for the application of the pari materia rule of construction:  to harmonize both rather than to imply repeal of one by the other.  (4) Finally Professor Van Alstyne points out that the inconsistencies between the Tort Claims Act and Civil Code section 846 which he discusses are ignored by the majority view.   He concludes, “Indeed, liability for injuries to recreational users of public property has been reflected in a significant percentage of the dangerous condition cases․  If Moore is correctly decided, many cases holding public entities liable over the past seventeen years (since 1963) have been erroneously decided.”  (Id., at p. 135.)

The quality and thoroughness of the judicial reasoning found in the Nelsen v. City of Gridley, supra, decision leads us to conclude it expresses the better rule and should be adopted.   Young was deprived by the grant of summary judgment of the opportunity to prove the factual issues relevant to his claim under Government Code sections 831.2, 831.6, or 835.   These issues were previously identified by the trial court in its denial of the first motion for summary judgment and at this juncture still remain unresolved.

Judgment reversed.

I respectfully dissent.

I would hold Civil Code section 846 1 does apply to governmental entities subject to the California Tort Claims Act.

The case of People v. Centr-O-Mart (1950) 34 Cal.2d 702, 214 P.2d 378, relied on by the court in Nelsen v. Gridley (1980) 113 Cal.App.3d 87, 169 Cal.Rptr. 757, not only held it was for the courts to determine whether the Legislature intended a statute, not expressly made applicable to government, it also held it proper to consider all matters which, under the rule of statutory interpretation, shed light on the legislative intent.  (Centr-O-Mart, supra, at p. 704, 214 P.2d 378.)   This is in line with the general proposition that in determining whether a statute is applicable to the state, the main consideration is legislative intent.  (State of California ex rel. Dept. of Employment v. General Ins. Co. (1970) 13 Cal.App.3d 853, 858, 91 Cal.Rptr. 483.)

The only case holding section 846 does not apply is Nelsen v. Gridley, supra, 113 Cal.App.3d 87, and it acknowledged the Legislature has been silent about its underlying intent in enacting the section (p. 91).   The Nelsen case also relied on Parish v. Lloyd (1978) 82 Cal.App.3d 785, 147 Cal.Rptr. 431, for the proposition section 846 was intended by the Legislature to encourage private landowners to allow the general public to recreate free of charge of their property.   However, the Parish court did not discuss legislative intent, cited no authority for its conclusion, and apparently proceeded on the unfounded assumption such was the legislative intent, as did Smith v. Scrap Disposal Corp. (1979) 96 Cal.App.3d 525, 529, 158 Cal.Rptr. 134, which relied upon Parish.

There are other statutory interpretative rules which should guide us.   The court should ascertain the intent of the Legislature so as to effectuate the purpose of the law.  (Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224.)  “An equally basic rule of statutory construction is, however, that courts are bound to give effect to statutes according to the usual, ordinary import of the language employed in framing them.”  (Rich v. State Board of Optometry (1965) 235 Cal.App.2d 591, 604, 45 Cal.Rptr. 512.)

“If the words of the statute are clear, the court should not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history.”  (People v. Knowles (1950) 35 Cal.2d 175, 183, 217 P.2d 1.)   It is well settled that Legislature is presumed to be cognizant of judicial decisions relevant to the subject matter of a statute.   (In re Marriage of Groner (1972) 23 Cal.App.3d 115, 118–119, 99 Cal.Rptr. 765.)

Applying those interpretative guidelines leads to the same conclusion reached by several other California courts, i.e., section 846 applies to publicly owned property.  English v. Marin Mun. Water Dist. (1977) 66 Cal.App.3d 725, 136 Cal.Rptr. 224;  Gerkin v. Santa Clara Valley Water Dist. (1979) 95 Cal.App.3d 1022, 157 Cal.Rptr. 612;  Moore v. City of Torrance (1979) 101 Cal.App.3d 66, 166 Cal.Rptr. 192, and Blakley v. State of California (1980) 108 Cal.App.3d 971, 167 Cal.Rptr. 1, all have so held.   The Gerkin case noted the Legislature had amended the statute on four subsequent occasions and its purpose was to encourage landowners to keep their property open to the public for recreational activities.  (Gerkin, supra, at p. 1026, 157 Cal.Rptr. 612.)   The Moore case observed the section was amended subsequent to the English case without removing public entities, following the Gerkin case.

As pointed out by the Supreme Court in Marina Point, Ltd. v. Wolfson, 30 Cal.3d 721, at 734, 180 Cal.Rptr. 496, 640 P.2d 115 (1982):  “It is a well-established principle of statutory construction that when the Legislature amends a statute without altering portions of the provision that have previously been judicially construed, the Legislature is presumed to have been aware of and to have acquiesced in the previous judicial construction.   Accordingly, reenacted portions of the statute are given the same construction they received before the amendment.”   Moreover, two Ninth Circuit opinions have applied section 846 to public entities.  (See Phillips v. United States (9th Cir. 1979) 590 F.2d 297, and Thompson v. United States (9th Cir. 1979) 592 F.2d 1104.)

The very position of section 846 is indicative of the legislative intent.   The sections immediately preceding and following it restrict their application when certain public entities are involved.   Yet section 846 applies to “an owner of any estate ․ in real property” (emphasis added).

Government Code section 815, subdivision (b), provides:  “The liability of a public entity established by this part (commencing with Section 814) ․ is subject to any defenses that would be available to the public entity if it were a private person.”   Hence, the immunity provisions prevail over all sections imposing liability and apply to public entities “immunities” and “defenses” which are outside the Tort Claims Act.  (See, e.g., Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334, where immunity was applied under Welfare and Institutions Code section 5154.)

Inasmuch as Professor Van Alstyne played no role in either the drafting or revision of section 846, and since he has taken an inconsistent position on its applicability to governmental entities, his most recent views are just observations and should not supplant statutory interpretative rules.

The usual, ordinary import of the legislative language “any” precludes us from judicially adding what is not there.  Code of Civil Procedure section 1858 provides:  “In the construction of a statute ․ the office of the Judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted.”   To add, by interpretation, the words “except public entities” is to do what the Legislature has refused to do and amounts to judicial legislation.


1.   Civil Code section 846 provided in pertinent part at times material:  “An owner of any estate in real property 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’ ․ includes ․ water sports ․  [¶]  This section does not limit the liability which otherwise exists (a) for willful or malicious failure to guard against a dangerous condition, use, structure or activity ․ or (c) to any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner.”

2.   The judge who ruled upon the first summary judgment motion was the Hon. David Menary, Jr.   A second defendant, County of Marin, also filed a motion for summary judgment at that time, prevailed and obtained a dismissal of the complaint against it.   Marin County is not a party to this appeal.

3.   A most recent case, Delta Farms Reclamation District No. 2028 v. Superior Court, 125 Cal.App.3d 662, 178 Cal.Rptr. 401 (3d Dist.) takes the same view as City of Gridley.   However, the Supreme Court has granted a hearing in this case.  (No. SF 24385)

1.   All references are to the Civil Code unless otherwise specified.

 STANIFORTH, Associate Justice.

WIENER, J., concurs.

Copied to clipboard