LOVING v. TENNECO WEST INC (1993)

OPINION

Plaintiff James Loving appeals from a judgment entered in favor of defendants Tenneco West, Inc. and Tenneco Realty Development Corporation (collectively Tenneco) after the trial court granted two separate summary judgment motions in Tenneco's favor.   Each motion involved different causes of action.

The Standard of Review

 On appeal from a summary judgment we exercise our independent judgment in assessing the legal significance of the moving papers and supporting documents in determining whether “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);  Saldana v. Globe–Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1513–1515, 285 Cal.Rptr. 385.)  We render an independent review of the correctness of the trial court's ruling in its entirety.  (California Aviation, Inc. v. Leeds (1991) 233 Cal.App.3d 724, 730–731, 284 Cal.Rptr. 687.)   We construe defendants' affidavits strictly, plaintiff's liberally, and resolve doubts about the propriety of granting this disfavored motion in favor of plaintiff.  (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.)

I

THE NEGLIGENCE CAUSE OF ACTIONThe Case

Loving's complaint sought damages against Tenneco and other defendants for personal injuries he incurred while attempting to rescue Michael Cox and his daughter, Kelli, from a fire.   Loving alleged Tenneco breached a duty of due care owed to him to keep certain unimproved real property owned by Tenneco clear of specified combustible and flammable vegetation.   As a proximate result Loving was severely burned in the fire.   The trial court granted Tenneco's motion for summary judgment, reasoning that the recreational use immunity found in Civil Code section 846 ¹ barred the negligence action and that because the complaint contained no assertion of negligence by Tenneco toward the Coxes, the rescue doctrine (Solgaard v. Guy F. Atkinson Co. (1971) 6 Cal.3d 361, 368, 99 Cal.Rptr. 29, 491 P.2d 821) was not applicable.

The Facts

According to the parties' respective statements, these facts were undisputed:  Tenneco owned certain Bakersfield property along the Panorama Bluffs where the accident occurred.   The property was undeveloped and bordered on the north by the East Side Canal and Kern River, on the south by Panorama Park and Panorama Drive, on the east and west by similar, undeveloped property.   On June 5, 1988, Cox started a grass fire on the property while teaching his eight-year-old daughter how to build a campfire.   From the edge of the bluff, Loving saw smoke.²  When Loving tried to rescue Cox and his daughter, the fire grew out of control and engulfed them.   Tenneco had not expressly invited either Cox or any other person to come upon or use the property.   However, Tenneco neither tried to keep the public off the property nor charged any consideration for its recreational use.   Loving had seen hikers, joggers and motorbike riders using the property.

In a declaration opposing summary judgment, a fire expert opined:  (1) the Tenneco property was a “highly dangerous fire hazard”;  (2) it was covered by grass and weeds, made particularly dry and flammable by a prolonged drought;  (3) the low moisture content of the ground cover, combined with the steep slopes and frequent wind gusts in the area, created an extreme hazard for people who might “come in contact with the parcel”;  (4) the parcel did not comply with local weed abatement ordinances;  (5) because other fires had occurred in the area before the June 5, 1988, accident, Tenneco's' management was or should have been aware of the danger;  and (6) the risk could have been mitigated by measures such as “fencing of the parcel, installing warning signs, reasonable security patrols, general restricted public access of vehicles to the various points of ingress and egress on the land, installation of drenching systems, and possibly even a system of controlled burnoffs.”

The Parties' Contentions

Loving contends triable issues of fact exist concerning (a) whether Tenneco owed a duty of care to him;  (b) whether the immunity provisions of section 846 abrogated that duty;  and (c) whether the “rescue doctrine” was applicable.   Tenneco responds it had no duty and, assuming any duty existed, section 846 conferred immunity.

Discussion

A. Tenneco's Duty of Care.

 Putting aside for the moment the question of immunity for recreational use, Rowland v. Christian (1968) 69 Cal.2d 108, 119, 70 Cal.Rptr. 97, 443 P.2d 561, establishes the test for liability of a landowner:  “whether in the management of his property [the landowner] has acted as a reasonable man in view of the probability of injury to others, and, although the plaintiff's status as a trespasser, licensee, or invitee may in the light of the facts giving rise to such status have some bearing on the question of liability, the status is not determinative.”  (See also § 1714, subd. (a).)  A landowner may be liable even to a trespasser ³ when it has violated a safety regulation prescribed for the benefit of the general public.  (Langazo v. San Joaquin L. & P. Corp. (1939) 32 Cal.App.2d 678, 690, 90 P.2d 825;  Dunn v. Pacific Gas & Electric Co. (1954) 43 Cal.2d 265, 271–272, 276, 272 P.2d 745.)   Concerning licensees ⁴ (as are rescue personnel such as police and firefighters who enter under imperative necessity (6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 909, p. 281)) liability will follow in the face of the violation of such a safety regulation.  (Longway v. McCall (1960) 181 Cal.App.2d 723, 734, 5 Cal.Rptr. 818;  6 Witkin, Summary of Cal. Law, op.cit. supra, § 910(c), p. 282.)   Thus, whether we consider Loving a trespasser or a type of “licensee,” Tenneco owed him a certain standard of care.

 A question arises whether Tenneco was in violation of a City of Bakersfield weed abatement (public nuisance) ordinance.   Ordinance No. 8.28.010 describes weeds, in part, as “Dry grasses, stubble, brush, dead shrubs, dead trees, litter or other flammable material which endanger the public safety by creating a fire hazard.”  (Emphasis added.)   Whether Tenneco violated a safety regulation prescribed for the benefit of the general public, of which Loving was a member, is a triable issue of fact.  (Cf., Alechoff v. Los Angeles G. & E. Corp. (1927) 84 Cal.App. 33, 37–39, 257 P. 569 [ordinance for protection of “general public” may be invoked by person injured by the act which constitutes the violation of the statute in seeking a civil remedy for such injury].)  Loving's theory as pleaded and argued before the trial court in opposition to the motion for summary judgment “contain[s] the germ of a potential cause of action” against Tenneco.  (Jos. Schlitz Brewing Co. v. Downey Distributor (1980) 109 Cal.App.3d 908, 917, 167 Cal.Rptr. 510.)   That is all the law required Loving to establish at that point.   As once noted:  “An appellate court will reverse a summary judgment if any kind of a case is shown.”  (Classen v. Weller (1983) 145 Cal.App.3d 27, 43, 192 Cal.Rptr. 914.)

B. Civil Code Section 846.

 Section 846 ⁵ provides an exception to the general rule that a private landowner owes a duty of reasonable care to any person who enters its property (§ 1714).  (Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1099, 17 Cal.Rptr.2d 594, 596, 847 P.2d 560, 562.  “ ‘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, disapproved on another point in Ornelas v. Randolph, supra, 4 Cal.4th 1095, 1103–1108, 17 Cal.Rptr.2d 594, 599–603, 847 P.2d 560, 565–569;  Hubbard v. Brown (1990) 50 Cal.3d 189, 193, 266 Cal.Rptr. 491, 785 P.2d 1183;  Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 707–708, 190 Cal.Rptr. 494, 660 P.2d 1168.)   In short, the section immunizes landowners from liability to nonpaying recreational users except when the landowner's conduct is willful or malicious.  (Ornelas v. Randolph, supra, 4 Cal.4th 1095, 1099–1100, 17 Cal.Rptr.2d 594, 596–597, 847 P.2d 560, 562–563;  New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681, 687–690, 217 Cal.Rptr. 522.)

 At the hearing on Loving's motion for reconsideration of summary judgment on the negligence cause of action, counsel for Loving emphasized his client did not enter Tenneco land for a recreational purpose, i.e., that rescue could not be interpreted as a recreational act, and therefore the provisions of section 846 did not apply to him.   The court reasoned once section 846 established immunity with respect to the Coxes, “then the Legislative intent would be consistent with finding that a rescuer would similarly not be able to assert a cause of action for negligence, but rather would have to follow a more difficult standard,” to wit, willful or malicious failure to guard or warn.  (§ 846.)   The court denied the motion for reconsideration.

We have found only one state—New Jersey—in which an appellate court has discussed the import of a similar immunity statute when a third party came onto property to rescue recreational users who found their lives in peril.  (See generally, Annot., Effect of Statute Limiting Landowner's Liability for Personal Injury to Recreational User (1986) 47 A.L.R. 4th 262.)   In Harrison v. Middlesex Water Co. (1979 N.J. Supreme Ct.) 80 N.J. 391 [403 A.2d 910], plaintiff's decedent drowned in an attempt to rescue two boys who fell through ice while skating on a reservoir owned by defendant water company.   The trial court granted defense motions for involuntary dismissal and judgment at the close of plaintiff's case.   The appellate division of the trial court affirmed, holding the New Jersey Landowner's Liability Act (the Act) ⁶ “ ‘provides that the water company owes no duty to keep the premises safe from anyone using the premises for sport and recreational activity including skating.’  [Citation.]”  (Id. 403 A.2d at p. 912.)   On appeal the New Jersey Supreme Court cited dual bases for reversal, one of which is applicable here:

“A second ground for our decision that the Act is not applicable here arises from the fact that plaintiff's decedent was not injured in the course of carrying on a sport or recreational activity.   The statute states that a landholder has no duty to keep premises safe for entry or use for the defined activities.   The decedent was drowned while attempting a rescue;  he was engaged in a life-and-death struggle which, sadly, he lost.   This activity was the very antithesis of sport and recreation and assuredly was not encompassed within the Act's purview.

“․

“We cannot ascribe a purpose on the part of the Legislature to sanction an expansive application of the operative statute.   The decedent met his death while engaging in an activity not enumerated in or contemplated by the statute.   The statute does not under these circumstances bestow blanket immunity upon a property owner or abrogate its duty of care owed to a person attempting to rescue another on its lands.”  (Harrison v. Middlesex Water Co., supra, 403 A.2d at pp. 915–916;  see Annot., 47 A.L.R.4th, op. cit. supra, “ ‘Sport and Recreational Activities,’ ” § 15, pp. 324–325.)

The express language of section 846 pertains to the recreational user.  Nothing in any reported discussion of the legislative intent behind section 846 evinces an intent, express or implied, to immunize landowners from liability to rescuers of recreational users.  “[T]he Legislature did not intend to immunize landowners from liability for all permissive or nonpermissive use of their properties, but only those uses which could justifiably be characterized as ‘recreational’ in nature.”  (Gerkin v. Santa Clara Valley Water Dist. (1979) 95 Cal.App.3d 1022, 1026, 157 Cal.Rptr. 612, disapproved on other points in Delta Farms Reclamation Dist. v. Superior Court, supra, 33 Cal.3d at p. 707, 190 Cal.Rptr. 494, 660 P.2d 1168, and Ornelas v. Randolph, supra, 4 Cal.4th 1095, 1102, 17 Cal.Rptr.2d 594, 598, 847 P.2d 560, 564.)   If the purpose of section 846 is to open private land to free recreational use while providing landowners a broad immunity from liability for such recreational use, a rescue, as described in Harrison, does not appear to be the type of activity contemplated by the statute.  “Since the state's purpose is to encourage recreational use, it is rational to protect the landowner from suits stemming from those kinds of activities but not absolve him of his legal duties to other trespassers.”  (Parish v. Lloyd (1978) 82 Cal.App.3d 785, 788, 147 Cal.Rptr. 431.)

 Tenneco cites to language in section 846 which provides a property owner who “gives permission to another for entry or [recreational] use ․ does not ․ 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.”   From this language, Tenneco argues the section specifically exempts it from liability to Loving.   Assuming the Coxes entered with the “permission” described in the statute, Tenneco's interpretation requires a conclusion that it was solely the act of Cox that caused Loving's injuries.   Such a conclusion is unwarranted;  whether Tenneco was negligent and set the stage for the conflagration which began when Cox lit the fire remains a jury question, as does the additional question of whether Cox's negligence might have superseded any negligence by Tenneco.   The New Jersey statute in Harrison, with nearly identical language, did not bar an action by the rescuer's estate.  (Harrison v. Middlesex Water Co., supra, 403 A.2d at pp. 912, 916;  see fn. 6, ante.)

Should Loving successfully rebut Tenneco's contention that he was a recreational user (see fn. 2, ante ), it appears the fact finder will be left with the conclusion Loving was acting in the capacity of a rescuer.   Should that threshold question be resolved in Loving's favor, then section 846 cannot be posited as a bar to Loving's cause of action for negligence.

C. The Rescue Doctrine.

 As a general rule, a person injured in the course of undertaking a necessary rescue may, absent rash or reckless conduct on his part, recover from the person whose negligence created the peril which necessitated the rescue.  (Solgaard v. Guy F. Atkinson Co., supra, 6 Cal.3d at p. 368, 99 Cal.Rptr. 29, 491 P.2d 821.)   For example, if a defendant creates a situation of peril for A, the defendant could properly be charged with having proximately caused not only the peril to A, but the peril faced by B during the course of B's rescue of A.  (Ibid.)  The trial court found Solgaard was not on point because Loving could not assert Tenneco's negligence toward the Coxes (§ 846).   The court reasoned it was consistent with the legislative intent of section 846 to bar the rescuer as well as the person rescued from a negligence action under such circumstances.

 The rescue doctrine becomes important when a rescuer is incapable of establishing a duty of care owed directly to him by a landowner;  indeed, the normal requirement of a duty of care owed to a plaintiff-rescuer is subjected to a policy exception that allows a rescuer to recover despite defendant's negligence only toward an imperiled third party and not the rescuer.  (Solgaard v. Guy F. Atkinson Co., supra, 6 Cal.3d at p. 368, 99 Cal.Rptr. 29, 491 P.2d 821.)   In this action there is a triable issue of fact concerning Tenneco's negligence toward Loving in failing to abide by the weed abatement ordinance.   Loving's negligence action relies upon Tenneco's alleged duty of care toward him directly, not Tenneco's duty of care toward the Coxes.   The rescue doctrine is irrelevant in analyzing the action between Loving and Tenneco.

 Loving and Tenneco are in the same position they would have been had Loving stopped his vehicle upon seeing smoke, walked over to the edge of the bluff to determine whether an emergency existed, discovered a fire had started from natural causes, and been overcome by flames fueled by overgrown vegetation.   The only difference between these hypothetical facts and the facts relevant to this summary judgment is that the fire started not by natural causes, but by Cox's campfire.   In neither case did Tenneco's negligence start the fire, but in both cases the negligence Loving alleges against Tenneco (overgrown vegetation) allowed the fire to burn out of control.   In neither case does the rescue doctrine have any applicability.

II

CAUSE OF ACTION FOR WILLFUL AND MALICIOUS MISCONDUCT ***

DISPOSITION

Judgment reversed.   Costs on appeal to appellant.

FOOTNOTES

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

2.   In his amended statement of disputed facts, Loving denied he had driven off of Panorama Drive onto the bluff before seeing the smoke.   He asserted he saw the smoke, then drove from the street onto the bluff to see where it was coming from.

3.   A trespasser enters land without privilege or consent (express or implied).  (Hamakawa v. Crescent Wharf etc. Co. (1935) 4 Cal.2d 499, 501, 50 P.2d 803.)

4.   A licensee enters land by consent or permission, ordinarily for purposes of his own, having no relation to the business of the owner.  (Miller v. Desilu Productions, Inc. (1962) 204 Cal.App.2d 160, 163, 22 Cal.Rptr. 36.)

5.   In 1988 section 846 read:“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.”

6.   “The New Jersey Landowner's Liability Act provides, in relevant part, that:“a. An owner, lessee or occupant of premises, whether or not posted as provided in section 23:7–7 of the Revised Statutes, owes no duty to keep the premises safe for entry or use by others for sport and recreational activities, or to give warning of any hazardous condition of the land or in connection with the use of any structure or by reason of any activity on such premises to persons entering for such purposes․  [N.J.S.A. 2A:42A–3].“The statute further provides that:“b. An owner, lessee or occupant of premises who gives permission to another to enter upon such premises for a sport or recreational activity or purpose does not thereby (1) extend any assurance that the premises are safe for such purpose, or (2) constitute the person to whom permission is granted an invitee to whom a duty of care is owed, or (3) assume responsibility for or incur liability for any injury to person or property caused by any act of persons to whom the permission is granted.  [Id.]“In addition, N.J.S.A. 2A:42A–2 defines ‘sport and recreational activities' to mean and include:“․ hunting, fishing, trapping, horseback riding, training of dogs, hiking, camping, picnicking, swimming, skating, skiing, sledding, tobogganing and any other outdoor sport, game and recreational activity including practice and instruction in any thereof.”  (Harrison v. Middlesex Water Co., supra, 403 A.2d at p. 912.)

FOOTNOTE.   See footnote *, ante.

STONE (WM. A.), Associate Justice.

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