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Court of Appeal, Second District, Division 6, California.

Braden T. HALE, etc., et al., Plaintiffs and Appellants, v. CITY OF SANTA PAULA, et al., Defendants and Respondents.

Civ. 66687.

Decided: September 12, 1984

Sweet, Norman & Dowler and Richard M. Norman, Ventura, for plaintiffs and appellants Braden T. Hale, Barby J. Edwards and Charles Thomas Hale. Archbald & Spray and Heather Scott Cissna Georgakis, Santa Barbara, for defendants and respondents Santa Paula Properties, Southern California Builders and Ventura Development Co.

Does Civil Code section 846 which grants immunity to real property owners against permissive users injured while engaging in recreational pursuits thereon apply to a child injured riding a bicycle on a vacant lot in a residential neighborhood?   If so, does this statute unconstitutionally deny equal protection to young children?   We hold that Civil Code section 846 is applicable to the property in question and does not deny equal protection to children.   We affirm the trial court's judgment in favor of respondent.


June 16, 1980, Braden T. Hale (Hale), riding his bicycle in a vacant lot owned by Santa Paula Properties, Southern California Builders and Ventura Development Company (Properties), fell into a three foot deep hole covered by weeds and brush, and was injured.   The weed-covered lot, where neighborhood children frequently played, is in a residential area.   August 1979, ten months prior to the accident, the City of Santa Paula, while repairing a clogged sewer line on the property had only partially refilled the hole.

In his complaint, Hale alleged that:  (1) the City of Santa Paula negligently repaired the sewer by not refilling the work site completely;  and (2) Properties negligently maintained the property, creating a hazard for children who played there.   January 14, 1982, the trial court granted Properties' motion for summary judgment since Civil Code section 846 exempts from liability real property owners who allow others to enter upon the land for recreational purposes, and entered its judgment in favor of respondents January 19, 1983.  (Code Civ.Proc., § 437c.) 1

Hale, appealing from that order, asserts the trial court erred in applying Civil Code section 846.2  He contends the legislature did not intend to relieve landowners from liability to trespassing children, and second, that section 846 is unconstitutional because it denies equal protection of the law to children.



Hale states that California has traditionally adopted a policy which imposes a special duty toward foreseeable child trespassers.  (4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, p. 2874.)   Accordingly, he argues, the legislature could not have intended relieving landowners from the responsibility of exercising reasonable care in maintaining property which is an attractive nuisance.   We disagree.

 One ascertains legislative intent by examining the plain language of a statute which must be regarded as conclusive unless the language is uncertain or ambiguous (United States v. Turkette (1981) 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246.)   If the statutory language is clear and unambiguous, “there is no need for construction, and courts should not indulge in it.”  (Solberg v. Superior Court (1977) 19 Cal.3d 182, 198, 137 Cal.Rptr. 460, 561 P.2d 1148.)   In fact, courts should decline to follow the plain meaning of a statute only when it would inevitably frustrate the purpose of the legislation itself, or lead to an absurd result.  (Atlantic Richfield Co. v. Workers' Comp. Appeals Bd. (1982) 31 Cal.3d 715, 726, 182 Cal.Rptr. 778, 644 P.2d 1257.)

 Since the language of section 846 makes no reference to children, the statute, on its face, applies equally to all persons.   The legislature made three exceptions to the liability limitation created by section 846 (supra, fn. 1).

 “(W)hen the statute itself specifies its exceptions, no other may be added under the guise of judicial construction.”  (In re De Neef (1941) 42 Cal.App.2d 691, 694, 109 P.2d 741.)   This court will not presume that the legislature, in omitting an exception for children, simply made an oversight, nor will we correct the omission judicially.  (Estate of Pardue (1937) 22 Cal.App.2d 178, 180–181, 70 P.2d 678.)

The instant case is readily distinguishable from Paige v. North Oaks Partners (1982) 134 Cal.App.3d 860, 184 Cal.Rptr. 867, cited by Hale, where a child sustained injuries while attempting to jump over an open trench in a temporary construction project near a market's loading dock in an urban shopping center.   The site behind the market was designated in the lease as common area and the contractor was repairing and altering this area.   The appellate court held that the purpose of section 846 was to encourage landowners to allow general public use of their land for recreational purposes and not to encourage landowners and building contractors to allow children to play on the temporary construction projects.  (p. 863, 184 Cal.Rptr. 867.)   The court stated that the property at issue was not one to which the statute was intended to apply.

In Potts v. Halsted Financial Corp. (1983) 142 Cal.App.3d 727, 191 Cal.Rptr. 160, the same court addressed a similar problem.   Here, a man entered a residential dwelling under construction and fell two stories while attempting to cross planks bridging the roofs of partially-constructed buildings.   The court found that section 846 did not bar inquiry into defendant's alleged negligence in maintaining his construction site, and reiterated that statutes will be given reasonable interpretation and application according to the purpose and intent of the Legislature.  (142 Cal.App.3d at p. 730, 191 Cal.Rptr. 160, citing Paige v. North Oaks Partners, supra, 134 Cal.App.3d 860, 863, 184 Cal.Rptr. 867.)

The reviewing court in Potts declined to follow Lostritto v. Southern Pac. Transportation Co. (1977) 73 Cal.App.3d 737, 140 Cal.Rptr. 905, where plaintiffs argued the statute was overinclusive because not only rural lands, woodlands and similar areas are covered in section 846, but also premises generally unsuited for recreation, although, in fact, used at the time of an accident for recreational purposes.  (Id., at p. 749, 140 Cal.Rptr. 905.)   The court responded:  “But section 846 is not designed, and no doubt could not be drafted, to absolve from the charge of simple negligence only the owners of such properties ordinarily entered by persons seeking recreation.”   (Ibid.) and “(t)he Legislature probably decided not only that freedom of recreation should be encouraged, but also that it is unfair to permit claims of negligence in favor of persons who choose to enter the lands of others for the described activities.”  (Id., at p. 749, 140 Cal.Rptr. 905.)

The reviewing court in Potts declared that Lostritto's construction of section 846 “ignores the general development of California tort law, which has discarded the arbitrary and indiscriminate application of blanket immunities.”  (Potts v. Halsted Financial Corp., supra, 142 Cal.App.3d 727, 731, 191 Cal.Rptr. 160.)

Hale asks us to make a Paige-Potts inquiry into the nature of the property (and the landowner's intent to develop it), arguing that the statute was never meant to apply to real property located in urban or residential areas while conceding the reviewing court in Paige refused to adopt a strict urban versus rural land approach.   In Potts, the appellate court held that application of the statute to the case before it would fail to promote intent of the legislature “ ‘to reduce the growing tendency of landowners to withdraw land from recreational access by removing the risk of gratuitous tort liability that a landowner might run unless he could successfully bar any entry to his property for enumerated purposes'.  [Citations.]”  (Id., at p. 730, 191 Cal.Rptr. 160.)   The stated rationale in Potts is that landowners who have begun to erect private dwellings have already withdrawn that portion of their land from public recreational access by making it unsuitable for such purposes.  (Ibid.)

Potts disregards observations by the California Supreme Court in Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 190 Cal.Rptr. 494, 660 P.2d 1168 that section 846 “is by no means limited to land in its natural condition—it specifically mentions ‘structures'—it obviously encompasses improved streets” (pp. 706–707, 190 Cal.Rptr. 494, 660 P.2d 1168), and “We note again that the statute [§ 846] makes no distinction between natural and artificial conditions.”  (Id., at pp. 707–708, 190 Cal.Rptr. 494, 660 P.2d 1168.)

 Although logic may dictate that the Legislature envisioned protecting only owners of undeveloped land in its natural state far from the madding crowds of urban development, in the six amendments to section 846 from 1971 to 1980 it has failed to so specify.   Nor has it excepted attractive nuisances to child trespassers.   When the Legislature amends a statute without altering portions of the provision that have been previously judicially construed, the Legislature is presumed to have been aware of and acquiesced in the prior judicial construction.  (Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 734, 180 Cal.Rptr. 496, 640 P.2d 115.) 3  Consequently, whereas application of the statute to Paige and Potts might well have led to an unfair and probably unintended result, the facts herein are dissimilar:  the lot was unimproved vacant land and Hale used it for recreational purposes.   We find the statute means what it says, and says what it means, and applies to Properties' property.


 Hale next argues that section 846 fails to provide equal protection for children and unreasonably creates a discriminatory classification.   He also asserts that this classification, which exempts landowners from liability to trespassers engaged in recreational activity, denies equal protection without fair and substantial relation to its purpose.

a. Discrimination Against Children

Hale contends the statute, facially nondiscriminatory between adults and children nevertheless creates an arbitrary class distinction which unreasonably and adversely affects children.   Since children lack the capacity to engage in non-recreational activities, he argues, they are forever barred by section 846 from recovering against landowners who negligently maintain their property.

Hale's analysis is defective because he relies upon an inaccurate premise.   Children engage in many non-recreational activities;  e.g., attending school and church, selling cookies and newspapers, babysitting and running errands.   A child injured while crossing negligently maintained real property on his way to school or to the supermarket would not be barred by section 846 from recovering against a landowner.  (See Gerkin v. Santa Clara Valley Water Dist. (1979) 95 Cal.App.3d 1022, 157 Cal.Rptr. 612, disapproved on other grounds in Delta Farms Reclamation Dist. v. Superior Court, supra, 33 Cal.3d 699, 707, 190 Cal.Rptr. 494, 660 P.2d 1168.)   Therefore, the statute neither expressly nor inferentially creates a class against whom there has been unreasonable or adverse discrimination.

b. Rational Basis

 Concerning equal protection, one must determine the validity of section 846 by the “rational relationship” rather than the more stringent “strict scrutiny” approach since minors are not a “suspect class” whose members have previously been victims of discrimination.   Nor does the right to sue for negligently inflicted injuries constitute a fundamental right requiring strict scrutiny.  (Kite v. Campell (1983) 142 Cal.App.3d 793, 799, 780, 191 Cal.Rptr. 363.)

 Where a challenged statute does not pertain to suspect classifications or alleged infringement of a fundamental interest, equal protection requires only that it bear a rational relationship to a legitimate state purpose.   Such a statute, presumed constitutional, will be set aside on equal protection grounds only if based on reasons totally unrelated to the pursuit of that goal.  (Lostritto v. Southern Pac. Transportation Co., supra, 73 Cal.App.3d 737, 749, 140 Cal.Rptr. 905.)

 Section 846 does not discriminate against children.   It does, however, create two classes of individuals:  those who enter onto land for recreational purposes and those who enter for non-recreational purposes.   Recreational users, children or adult, are treated alike.   That a larger proportion of children's activities might be characterized as “recreation” does not invalidate section 846 since the equal protection clause, which requires neither absolute or perfect equality nor equal applicability to all persons, permits the creation of differences so long as those differences do not amount to invidious discrimination.  (Abel v. Cory (1977) 71 Cal.App.3d 589, 597, 139 Cal.Rptr. 555.)

 The Legislature determined that exempting property owners from liability to trespassing recreational users encourages landowners to allow the general public to recreate free of charge on privately owned property.   In light of the growing tendency of landowners to bar trespassers from their property because of the threat of tort liability, the statutory exemption bears a rational relationship to a legitimate state purpose.  (Parish v. Lloyd (1978) 82 Cal.App.3d 785, 787–788, 147 Cal.Rptr. 431.)   The judiciary's function is not to reweigh the “legislative facts” underlying a legislative enactment.  (American Bank and Trust Co. v. Community Hospital of Los Gatos-Saratoga, Inc. (1984) 36 Cal.3d 359, 372, 204 Cal.Rptr. 671, 683 P.2d 670;  Minnesota v. Cloverleaf Creamery (1981) 449 U.S. 456, 464, 101 S.Ct. 715, 723, 66 L.Ed.2d 659.)   Nor does a measure's constitutionality under the equal protection clause depend on a court's assessment of the empirical success or failure of the measure's provisions.  (American Bank and Trust, supra, 36 Cal.3d at p. 374, 204 Cal.Rptr. 671, 683 P.2d 670.)

 Furthermore, Hale's argument that the statute contravenes our public policy of protecting children is not persuasive.   Legislative enactments are expressions of public policy.  (English v. Marin Mun. Water Dist. (1977) 66 Cal.App.3d 725, 730, 136 Cal.Rptr. 224, disapproved on other grounds in Delta Farms Reclamation Dist. v. Superior Court, supra, 33 Cal.3d 699, 707, 190 Cal.Rptr. 494, 660 P.2d 1168.)   Consequently, “the judicial branch does not have the power to abrogate or invalidate legislation unless it is clearly shown that it is violative of one or more provisions of the Constitution of California or the United States,” (English v. Marin, supra, 66 Cal.App.3d at p. 730, 136 Cal.Rptr. 224, fn. omitted) which Hale has not shown.

Finally, we hold that statutory immunity is applicable under the circumstances of this case and that the classification of section 846 is rationally related to its legislative goals.

Judgment in favor of respondents is affirmed.


1.   Civil Code 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, 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.”

2.   All statutory references are to the Civil Code unless otherwise indicated.

3.   In 1978 the Legislature expanded the immunity of section 846 to encompass “any recreational purpose.”  (Stats.1978, ch. 86, § 1.)

STONE, Presiding Justice.

ABBE and GILBERT, JJ., concur.

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