CLARK v. Columbia Cascade, Defendant, Cross-Defendant and Respondent. (2003)

Plaintiff Burgin Clark, aged 10, broke his leg in an accident on playground equipment owned by defendant Fair Oaks Recreation and Park District (the District) and manufactured by defendant Columbia Cascade.   Through his guardian ad litem, Ruth Gothier, plaintiff sued the District, alleging a dangerous condition of public property, and Columbia Cascade, alleging strict liability for design defect.¹  The District cross-complained against Columbia Cascade for equitable indemnity.

After a bench trial in which all parties put on expert testimony as to how plaintiff's injury occurred and how to interpret the legal safety standards for playground equipment, the trial court found for plaintiff against the District, but not against Columbia Cascade.  (We give the substance of the court's legal conclusions below as relevant to the District's claims of error.)   The court awarded damages of $87,264.70 against the District, including economic damages of $24,764.70 and non-economic damages of $62,500.   The court also found in favor of Columbia Cascade on the District's indemnity cross-complaint.

The District contends it had absolute immunity under section 831.7;  plaintiff assumed the risk of his accident;  and the kind of injury that occurred was not reasonably foreseeable.   It also contends plaintiff's evidence of medical damages was improperly admitted.   Finally, it contends (joined on this point by plaintiff) that if the trial court correctly found it liable based on a defective design that caused injury, it could not properly fail to hold Columbia Cascade strictly liable for the design defect.

In the published portion of the opinion, we conclude the District has not satisfied its burden of proving the affirmative defense of absolute immunity under section 831.7.   In the unpublished portion of the opinion, we reject the remaining attacks on the judgment.   We shall therefore affirm the judgment.

FACTS

As the District does not overtly claim the evidence is insufficient to support the trial court's findings, we recite the facts most favorably to the judgment, drawing largely on the court's statement of decision.

The District owns and maintains eight parks with playgrounds, including Village Park. In 1988, Village Park acquired a piece of playground equipment manufactured by Columbia Cascade;  the District installed it according to the manufacturer's instructions and did not subsequently modify it in any way.   The equipment consisted of several different types of apparatus joined together, including platforms, swings, a tire swing, a slide, and an arch climber leading up to one of the platforms.²  A photograph of the arch climber is attached as an appendix, post.

An arch climber is an apparatus made up of convex side supports, rungs, and open spaces between the rungs;  it curves as it ascends.   Children are expected to use all four limbs to go up and down it, as it has no handrails.   Before February 23, 1999, there had not been an accident on the arch climber in Village Park, so far as the District's employees knew.

In 1981, the CPSC issued guidelines on playground equipment, published under the title “Handbook for Public Playground Safety.”   They prescribed that the spaces between the top surfaces of adjacent rungs of an arch climber should be at least seven inches and not more than 11 inches apart.   This rule was meant to avoid the danger of entrapment, particularly the entrapment of a child's head between rungs.   However, if a “head probe” could not penetrate between rungs to a depth of at least four inches, the danger of head entrapment was minimal.   Because the head probe test showed that the spaces between the rungs of the Village Park arch climber could not be penetrated to that depth, it complied with the 1981 guidelines.

In 1991, the CPSC issued a revised “Handbook for Public Playground Safety” with new guidelines, reissued without relevant change in 1997.   The 1991 guidelines provide that to prevent entrapment, defined as “[a]ny condition that impedes withdrawal of a body or body part that has penetrated an opening,” rung spacing on arch climbers should follow the recommendations for rung ladders.   These state that spaces between rungs should not be between three and one-half inches and nine inches (i.e., they should be less than three and one-half inches apart or more than nine inches apart).   The rungs on the Village Park arch climber measured four and one-half inches apart.   Thus they did not comply with the 1991 guidelines.³

In 1995, the Legislature enacted Health and Safety Code sections 115725 and 115730.  Health and Safety Code section 115725 required the state to adopt regulations for public playgrounds that “shall meet the standard of care imposed by courts of law on playground operators, and shall, at a minimum, impose guidelines and criteria that shall be at least as protective as the guidelines in the Handbook for Public Playground Safety produced by the [CPSC] ․” Health and Safety Code section 115730 required public entities to upgrade their playgrounds to satisfy the new regulations, so far as state funding was available for this purpose.

On October 12, 1998, District Park Supervisor Rodney Melton, a certified playground inspector, performed a safety audit of Village Park's equipment.   He immediately reported to his superior, Superintendent Bill Hinson (also a certified playground inspector), both orally and in writing, that he had found many violations of the 1991 CPSC guidelines that could cause life-threatening or permanently disabling accidents (“priority one” hazards), including the risk of entrapment from the improper spacing between the rungs of the arch climber.⁴  Melton recommended the equipment be removed as soon as possible.   Hinson concurred.   However, although he had the authority to remove a portion of a structure, such as an arch climber, on his own initiative, he did not;  all he did was to recommend to District headquarters that the entire structure be replaced within the next year under the District's 10-year master plan for all city parks.   In the meantime, the equipment was left untouched and children were allowed to play on it as usual, without any warning of its hazards.⁵

On February 23, 1999, the 10-year-old plaintiff played on the arch climber.   According to his undisputed testimony, as he descended the apparatus facing toward it and using all four limbs (a normal and reasonably foreseeable manner of playing on it), his left foot missed a rung and his leg fell into the space between two rungs. When he tried to extract it, his femur snapped.   Sean Shimada, an expert on biomechanics called by the District, admitted that getting the leg caught in the space between the rungs caused plaintiff's femur to break;  if the spacing had complied with the 1991 guidelines this scenario could not have occurred or, if it could, would have been less likely to produce a fracture.

Plaintiff spent three days in the hospital, where he underwent surgery on the leg to insert screws, followed by eight weeks recuperating at home, including four weeks in a wheelchair wearing a cast;  later he had a second surgery to remove the screws.   He was in significant pain throughout that period, required home nursing care at a cost of $1,400, and could not attend school.   Records produced by plaintiff and testified to by Joan Haradon, custodian of billing records for Kaiser Hospital, showed his medical expenses for the period February 23, 1999, to November 1, 2000, totaled $23,314.70.

DISCUSSION

I

The District contends the trial court erred by finding it liable for a dangerous condition of public property because it has absolute immunity from liability for any injury incurred by a participant in a “hazardous recreational activity.” (§ 831.7.) We disagree.   The District's claim of immunity is an affirmative defense on which the District had the burden of persuasion.  (See Knight v. City of Capitola (1992) 4 Cal.App.4th 918, 925-926 & fn. 3, 6 Cal.Rptr.2d 874;  Evid.Code, § 500.)   As we shall explain, in this case, the District has failed to meet that burden.

The trial court's statement of decision reads as follows on this issue:  “[ ] section 831.7 provides that a public entity is not liable to any person who participates in a hazardous recreational activity when he knew or should have known the equipment presented a substantial risk of injury.   Defendant asserts, without reference to pertinent authority, that climbing on a piece of playground equipment is a hazardous activity for purposes of this statute.   The court is not so persuaded.   The described activity is not included in the specific definitions of the statute.   The fact that there is always a risk of falling from a piece of playground equipment does not mean that playground equipment necessarily presents a ‘hazardous recreational activity’ as contemplated by the statute.   Properly designed static playground equipment does not qualify as hazardous for purposes of the statute.   Moreover, even if it did, there is ample evidence in the record that the injury-causing defect was not something that was easily discernible.   There is no evidence that plaintiff knew of the defect.   The fact that a child knows, or should know, that there is a risk of falling does not mean that the [10-year-old] plaintiff in this case should have known that there was a substantial risk of falling and having his leg entrapped in the rungs of the arch[ ] climber.”

Section 831.7 provides as relevant:  “(a) Neither a public entity nor a public employee is liable to any person who participates in a hazardous recreational activity, ․ or to any spectator who knew or reasonably should have known that the hazardous recreational activity created a substantial risk of injury to himself or herself and was voluntarily in the place of risk, or having the ability to do so failed to leave, for any damage or injury to property or persons arising out of that hazardous recreational activity.

“(b) As used in this section, ‘hazardous recreational activity’ means a recreational activity conducted on property of a public entity which creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury to a participant or a spectator.

“ ‘Hazardous recreational activity’ also means:  [a nonexclusive list of specific activities follows;  using playground equipment is not among them].[[[[⁶ ]”

The District asserts that the use of playground equipment in a normal and reasonably foreseeable manner is a hazardous recreational activity under section 831.7;  however, its appellate briefs fail to support this assertion.   As the District concedes, section 831.7 does not specifically list the use of playground equipment as a hazardous recreational activity.   The District cites no authority holding that the use of playground equipment “creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury to a participant” (ibid.), and we have found none.   Finally, the District does not attempt to show through legislative history that the Legislature had the use of playground equipment in mind when it enacted section 831.7.   We have independently examined the legislative history of the statute and have found no reference to playground equipment.

The District cites two cases, but neither is apposite.⁷  The District's first case involved swinging from a fire hose hung from a tree, which the court found indistinguishable from “tree rope swinging,” listed in section 831.7, subdivision (b)(3).  (DeVito v. State of California (1988) 202 Cal.App.3d 264, 272 & fn. 5, 248 Cal.Rptr. 330.) The District's second case involved basketball, which the court found to be a “body contact sport”-also listed in section 831.7, subdivision (b)(3).  (Yarber v. Oakland Unified School Dist. (1992) 4 Cal.App.4th 1516, 1519-1520, 6 Cal.Rptr.2d 437.)   These cases do nothing to establish that an activity not listed in the statute might fall within its general definition of a hazardous recreational activity.

Though we reject the District's position, we do not endorse all of the trial court's reasoning.

First, the court did not cite authority for the proposition “[p]roperly designed static playground equipment does not qualify as hazardous for purposes of the statute” and we have not found any such authority;  nor can we presume this proposition true as a matter of law.   Our review of the evidence indicates there is no support in the record for this conclusion.

 Second, it is immaterial under section 831.7 whether plaintiff knew or should have known of the hazard because the statute applies that test only to a “spectator” to an activity.   However, we must uphold a correct result even if the court's reasoning was not correct.  “There is perhaps no rule of review more firmly established than the principle that a ruling or decision correct in law will not be disturbed on appeal merely because it was given for the wrong reason.   If correct upon any theory of law applicable to the case, the judgment will be sustained regardless of the considerations that moved the lower court to its conclusion.  [Citation.]”  (Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 568, 253 Cal.Rptr. 693, 764 P.2d 1070.)

We do not mean to imply that the District's argument is foreclosed as a matter of law.

 Where a recreational activity is not expressly identified in section 831.7, the test of whether it is “hazardous” is whether the activity “creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury to a participant or a spectator.”   This determination requires factual determinations-most significantly whether participants are frequently injured while engaging in the activity.   Where the facts surrounding a recreational activity are undisputed, and the hazardous nature of the activity is obvious, the question whether an activity is “hazardous” may properly be decided as a question of law by the court.  (Ochoa v. California State University (1999) 72 Cal.App.4th 1300, 1307, 85 Cal.Rptr.2d 768 [adult soccer game];  Acosta v. Los Angeles Unified School Dist. (1995) 31 Cal.App.4th 471, 476, 37 Cal.Rptr.2d 171 [section 831.7 inapplicable to supervised gymnastic activity at school];  Yarber v. Oakland Unified School Dist., supra, 4 Cal.App.4th at p. 1519, 6 Cal.Rptr.2d 437 [adult basketball game].)

Here, however, we frankly do not know whether children who play at public playgrounds are injured sufficiently frequently to make that activity “hazardous.”   The trial court opined the activity was not hazardous, but there is no evidence in the record to support that conclusion.   At oral argument, the District contended the record contained evidence showing that the use of playground equipment creates a substantial risk of injury to a participant.   Thus, the District cited to a trial exhibit, the 1997 edition of the CPSC “Handbook for Public Playground Safety,” and in particular to a cover letter by the CPSC's Chairman which states:  “Unfortunately, more than 200,000 children are treated in U.S. hospital emergency rooms each year for injuries associated with playground equipment.   Most injuries occur when children fall from the equipment onto the ground.” ⁸  This evidence does not help the District.

 First, the District's appellate briefs fail to cite this evidence or to base any argument on it.   It is the appellant's duty to make arguments, supported by record citation, in its briefs.  (Cal. Rules of Court, rule 14(a)(1)(B),(C).)  A point first asserted at oral argument is waived.   (Starzynski v. Capital Public Radio, Inc. (2001) 88 Cal.App.4th 33, 38, fn. 2, 105 Cal.Rptr.2d 525.) Any other rule would be unfair to the opposing party and the trial court.

Second, the District did not make any argument based on this evidence below in its trial brief.   As we have noted, the claim of immunity under section 831.7 is an affirmative defense on which the District bore the burden of persuasion in the trial court.   Because the District did not make any argument there based on the evidence it cited at oral argument, it did not give plaintiff the opportunity to litigate the significance of this evidence.   Its mere presence in a trial exhibit, without more, did nothing to meet the District's burden.

But even if we could consider this evidence, it would not establish the District's point.   Lacking any context (such as the number of children who use playground equipment every day), the bare statement that 200,000 children visit the emergency room each year due to playground equipment accidents tells little about the gravity of the risk.

The District also asserted at oral argument that the experts at trial agreed it is impossible to eliminate the risk of falling from playground equipment.   Although this point does appear in the District's appellate briefing, it does not advance the District's case on this issue.   The fact that some level of risk is unavoidable does not prove the risk is “substantial” within the meaning of section 831.7.

 As we have mentioned, the evidentiary question whether playing on playground equipment generally creates a substantial risk of injury was simply not litigated in the trial court.   We do not think that we should simply guess at the correct answer.   Thus, we cannot say it is impossible that another litigant might offer sufficient evidence to show that the ordinary use of playground equipment creates a substantial risk of injury within the meaning of section 831.7.   We conclude only that the District has not done so in this case, even though it had the burden to establish this affirmative defense.⁹

II-V **

DISPOSITION

The judgment is affirmed.   Plaintiff Clark and defendant Columbia Cascade shall recover their costs on appeal from the District.

APPENDIX A

FOOTNOTES

1.   Government Code section 835 states in part:  “Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of public property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and ․“[¶] ․ [¶]“[ ] The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”Government Code section 830 states in part:  “As used in this chapter:“(a) ‘Dangerous condition’ means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property ․ is used with due care in a manner in which it is reasonably foreseeable that it will be used.“(b) ‘Protect against’ includes repairing, remedying or correcting a dangerous condition, providing safeguards against a dangerous condition, or warning of a dangerous condition.”All further undesignated section references are to the Government Code.

2.   The statement of decision calls it an “arched climber.”   However, the parties, the manufacturer's invoice, and the federal Consumer Product Safety Commission (CPSC) guidelines say “arch climber.”

3.   The trial court drew these conclusions after weighing lengthy expert testimony about the guidelines.   The court did not entirely accept any of the experts' opinions.Plaintiff's expert on this topic, Emelyn Kalinowski, opined that the arch climber did not comply with either the 1981 or the 1991 guidelines.The District's expert on this topic, Jay Beckwith, opined that the relevant language of both guidelines dealt only with head entrapment;  the arch climber either complied with the standard in that respect or was not dangerously out of compliance.   Beckwith conceded, however, that he had testified in deposition he did not disagree with the conclusion drawn by District employee Rodney Melton that the arch climber posed a life-threatening hazard and should have been removed.  (See post.)   Beckwith, who was in the business of designing and selling playground equipment, also admitted he had knowingly sold equipment that violated the guidelines.   He preferred “variety” in playground equipment, even if it rendered the equipment noncompliant, to uniformity.Columbia Cascade's expert, Teresa Hendy, opined that the arch climber complied with the 1981 guidelines, but not with the 1991 guidelines for head entrapment.   She did not think it was a life-threatening violation;  however, she did not fault District employee Melton for concluding otherwise, given his level of knowledge, and she conceded it could have caused injury.   But she did not think the manner in which plaintiff was injured (slipping and falling) came within the guidelines' concern.

4.   Melton's written report shows 11 “priority one” guideline violations, two “priority twos” (risk of serious or non-disabling injury), and one “priority three” (risk of slight injury, if any).   It lists the arch climber twice, both times as a priority one hazard.   Under “General Hazards [:] Pinch, Crush and Shearing Points,” it states:  “Arched ladder can cause entrapment.”  (There is a separate listing for “Head Entrapment” under this heading, which does not mention the arch climber.)   Under “Stairways and [L]adders[:] Entrapment-Head & Body,” it states:  “Head entrapment is possible in the arch ladder/climber.”At trial, Melton testified that he understood the arch climber hazard to be only head entrapment.   However, he was impeached by his deposition testimony, in which he stated that he understood this hazard to include entrapment of any body part, including a leg (the manner in which plaintiff suffered his accident).Hinson testified at trial that as he understood entrapment it could include the entrapment of a leg, and when he discussed Melton's report with him that possibility was mentioned.   Examining the arch climber at that time, he could not see a possibility of head entrapment.

5.   One of plaintiff's experts testified that aside from immediately removing or fencing off the entire piece of equipment or removing the arch climber alone, it would have been possible to nail a piece of plywood onto the arch climber to close the gaps between rungs.   Hinson and Melton testified they could not change or modify equipment without the manufacturer's approval and to do so might create more problems than it solved.   However, neither sought Columbia Cascade's advice about the known dangers of the equipment before plaintiff's accident.

6.   The enumerated activities fall into three groups:  (1) “[w]ater contact activities, except diving,” where lifeguards are not posted and a reasonable person should have known that there would be none on hand;  (2) diving from any point other than a diving board or platform, or from any specifically prohibited place as to which warning has been given;  and (3) a list of miscellaneous activities united by the vigor and obvious exposure to risk required, the use of obviously dangerous equipment, or both (animal riding, archery, bicycle racing or jumping, mountain bicycling [but not bicycling on paved roads and sidewalks], skiing, hang gliding, kayaking, motorized vehicle racing, off-road motorcycling or four-wheel driving, orienteering, pistol and rifle shooting, rock climbing, rocketeering, rodeo, spelunking, sky diving, sport parachuting, paragliding, “body contact sports,” surfing, trampolining, tree climbing, tree rope swinging, waterskiing, white water rafting, and windsurfing). (§ 831.7, subd. (b)(1)-(3).)

7.   The District asserts “there are any number of other ‘hazardous recreational activity’ cases that would indicate that the immunity should apply.”   If so, the District should have cited them.   We are not required to take the District's word for it.

8.   The District also asserted that the 1997 Handbook itself contained similar evidence.   We have not found such evidence at the pages the District cited.

9.   In light of this conclusion, we need not decide whether liability might still exist on these facts, even if the use of playground equipment were deemed a hazardous recreational activity, under the following statutory exemption from immunity:  “Failure of the public entity or employee 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.” (§ 831.7, subd. (c)(1).)

FOOTNOTE.   See footnote *, ante.

SIMS, Acting P.J.

We concur:  NICHOLSON and RAYE, JJ.