Ornelas v. Randolph

PANELLI, J., Dissenting.

There are three reasons why the majority’s interpretation of Civil Code section 8461 is erroneous. First, it fails to recognize that the Legislature has acquiesced in the long-standing rule requiring that the property in question be “suitable” for a recreational purpose. Second, it does not further the legislative intent underlying the statute. Third, it misconstrues the statutory phrase “any recreational purpose” to include climbing on farm equipment and, in so doing, violates basic principles of statutory construction. For these reasons, I dissent.

I.

First, it is irrefutable that the Legislature has acquiesced in the many judicial decisions construing section 846 to include a suitability exception. (See Paige v. North Oaks Partners (1982) 134 Cal.App.3d 860 [184 *1111Cal.Rptr. 867]; Potts v. Halsted Financial Corp. (1983) 142 Cal.App.3d 727 [191 Cal.Rptr. 160]; Nazar v. Rodeffer (1986) 184 Cal.App.3d 546 [229 Cal.Rptr. 209]; Charpentier v. Von Geldern (1987) 191 Cal.App.3d 101 [236 Cal.Rptr. 233]; Domingue v. Presley of Southern California (1988) 197 Cal.App.3d 1060 [243 Cal.Rptr. 312]; Wineinger v. Bear Brand Ranch (1988) 204 Cal.App.3d 1003 [251 Cal.Rptr. 681]; Valladares y. Stone (1990) 218 Cal.App.3d 362 [267 Cal.Rptr. 57]; Myers v. Atchison, Topeka & Sante Fe Railway Co. (1990) 224 Cal.App.3d 752 [274 Cal.Rptr. 122].)

Under the doctrine of legislative acquiescence, “ ‘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.’ ” (Fontana Unified School Dist. v. Burman (1988) 45 Cal.3d 208, 219 [246 Cal.Rptr. 733, 753 P.2d 689], quoting Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 734 [180 Cal.Rptr. 496, 640 P.2d 115, 30 A.L.R.4th 1161], cert. denied 459 U.S. 858 [74 L.Ed.2d 111, 103 S.Ct. 129]; accord, People v. Bouzas (1991) 53 Cal.3d 467, 475 [279 Cal.Rptr. 847, 807 P.2d 1076].) As the majority recognizes, the suitability exception has been applied in an unbroken line of decisions in this state since it was first recognized in 1982. (Maj. opn., ante, at p. 1103.)

By 1988 the suitability exception was well established. (Paige v. North Oaks Partners, supra, 134 Cal.App.3d 860; Potts v. Halsted Financial Corp., supra, 142 Cal.App.3d 727; Nazar v. Rodeffer, supra, 184 Cal.App.3d 546; Charpentier v. Von Geldern, supra, 191 Cal.App.3d 101; Domingue v. Presley of Southern California, supra, 197 Cal.App.3d 1060; Wineinger v. Bear Brand Ranch, supra, 204 Cal.App.3d 1003.) In that year, the Legislature amended section 846 to add “hang gliding” to the list of activities enumerated in the statute. (Stats. 1988, ch. 129, § 1, p. 507.) Since the suitability exception serves to limit the scope of the immunity provided by the statute, it would have been logical for the Legislature to abrogate this exception if it wished to do so at the same time it was expanding the immunity provided by the statute to include a new recreational activity. The Legislature, however, did not modify any of the other language of this short, unsegmented statute. Therefore, a strong presumption arises that the Legislature has acquiesced in the judicial interpretation.

By way of contrast, I observe that the Legislature previously took prompt action to amend the statute in light of merely two decisions of the Courts of Appeal that limited section 846 immunity to holders of possessory interests in real property. (See Darr v. Lone Star Industries, Inc. (1979) 94 Cal.App.3d 895 [157 Cal.Rptr. 90]; O’Shea v. Claude C. Wood Co. (1979) 97 Cal.App.3d *1112903 [159 Cal.Rptr. 125]; Hubbard v. Brown (1990) 50 Cal.3d 189, 194-195 [266 Cal.Rptr. 491, 785 P.2d 1183] [discussing history of 1980 amendments].) Surely, in light of the unbroken line of cases recognizing the suitability exception, the Legislature would have taken similar action sometime during the decade since the exception was recognized if the appellate courts indeed had consistently misconstrued its intent.

II.

The Legislature’s acquiescence in the suitability exception is not surprising, since the exception appears to be consistent with the Legislature’s intent. Unlike the majority, I do not believe that the Legislature intended to severely curtail the protections provided to its citizens by the tort laws of this state (§ 1714; Rowland v. Christian (1968) 69 Cal.2d 108, 119 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496]) without achieving a significant public benefit in return.

As the majority recognizes, section 846 “provides an exception from the general rule that a private landowner owes a duty of reasonable care to any person coming upon the land. [Citations.]” (Maj. opn., ante, at p. 1099.) The legislative purpose in providing this exception was to encourage private property owners to keep their property accessible and open free of charge to the public for recreational use. (E.g., Hubbard v. Brown, supra, 50 Cal.3d at p. 193; Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 707-708 [190 Cal.Rptr. 494, 660 P.2d 1168], cert. denied 464 U.S. 915 [78 L.Ed.2d 257, 104 S.Ct. 277]; Valladares v. Stone, supra, 218 Cal.App.3d at p. 367.) Thus, section 846 represents a trade-off of the protections provided by the tort laws for increased recreational opportunities. The public benefit contemplated by this trade-off, however, does not actually accrue unless the land that is made available for public use is suitable for a recreational purpose.

The majority’s interpretation of section 846 permits the exception created by that section to swallow the general duty of care in practically all nonbusiness contexts, thereby upsetting the balance of the trade-off contemplated by the Legislature. The result is a blanket immunity that is unnecessary to achieve any significant public benefit.

The majority claims that its interpretation of section 846 is necessary to further the legislative intent for two reasons. First, the majority reasons that the Legislature rationally could have determined that a suitability exception would breed uncertainty in the application of immunity thereby discouraging landowners from allowing the public the access to their lands that the statute *1113was enacted to promote. (Maj. opn., ante, at pp. 1106-1108.) This contention is easily addressed. Even assuming the majority is correct that adopting the suitability exception could discourage some landowners from mating their lands available to the public for recreational purposes, this effect is likely to be most pronounced among landowners whose property is unsuitable or of marginal suitability for public recreation. Only a landowner who is uncertain whether his property is suitable for recreation will have an incentive to behave as the majority suggests by closing his property. Yet, in such a case, very little public benefit, if any, will be lost. An interpretation of the statute leading to closure of marginal recreational lands is more consistent with the legislative trade-off between increased recreational opportunities and diminished legal protections for persons who choose to take advantage of such opportunities than the blanket immunity resulting from the majority’s interpretation.

Second, the majority reasons that the Legislature rationally could have determined that it was unfair to permit claims of negligence by persons choosing to enter private property for recreational purposes. (Maj. opn., ante, at pp. 1105-1106.)2 This contention also is easily addressed. Initially, nothing in the statutory language or the sparse legislative history of this statute supports the majority’s speculation on this point. (Potts v. Halsted Financial Corp., supra, 142 Cal.App.3d at p. 731.) Moreover, I cannot believe that, if the Legislature indeed had been concerned with achieving fairness or rationality in premises liability torts, rather than simply attempting to ensure the availability of recreational lands for the public, the statutory immunity in question would have been phrased in terms of recreation. Borrowing a persuasive example from one of our lower courts, I cannot conclude that, if the legislative intent was as the majority suggests, the Legislature would have chosen to immunize a developer from suits by children coming to play on its construction site, but leave the developer unprotected from suits by adults who enter the property for nonrecreational, illegal purposes (other than to commit one of the felonies listed in section 847), such as to steal a piece of lumber lying on the ground. (142 Cal.App.3d at p. 731.)

For these reasons, I disagree with the majority’s decision to abrogate the suitability exception. In my view, section 846 is properly interpreted to include the suitability exception long recognized by our Courts of Appeal.

III.

Finally, the majority further errs in concluding that playing on farm equipment is a recreational activity triggering the immunity provided by the *1114statute. The majority reaches this result by concluding that the statutory phrase “any recreational purpose” should be read without regard to the list of activities provided in the statute. (Maj. opn., ante, at pp. 1100-1102.) The majority’s conclusion violates accepted principles of statutory construction.

First, the majority fails to heed the principle that the courts must strive to give significance to every word, phrase and sentence employed by the Legislature. (E.g., Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379,1386-1387 [241 Cal.Rptr. 67, 743 P.2d 1323]; Brown v. Superior Court (1984) 37 Cal.3d 477, 484 [208 Cal.Rptr. 724, 691 P.2d 272]; Moyer v. Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230 [110 Cal.Rptr. 144, 514 P.2d 1224].) The majority’s interpretation of the statute renders superfluous the paragraph in the statute listing activities included as recreational for purposes of the statute.

That the statutory list of activities was intended by the Legislature to give meaning to the phrase “any recreational purpose” is confirmed by subsequent legislative history. The phrase “any recreational purpose” was added as part of comprehensive amendments to the statute enacted in 1978. (Stats. 1978, ch. 86, § 1, p. 221.) In 1979, the Legislature expanded the list of activities included within the definition of “recreational purpose” to include “sport parachuting.” (Stats. 1979, ch. 150, § 1, p. 347.) In 1988, the Legislature again expanded the definitional list by adding “hang gliding.” (Stats. 1988, ch. 129, § 1, p. 507.) These two amendments to the statute would have been unnecessary if the Legislature had intended the phrase “any recreational purpose” to be read without regard to the definitional list provided in the statute.

Since the list was intended to provide meaning to the phrase “any recreational purpose,” application of the principle of ejusdem generis is appropriate. This principle provides that where specific words follow general words in a statute or vice versa, “the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated.” (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1160 [278 Cal.Rptr. 614, 805 P.2d 873], internal quotation marks omitted; accord Peralta Community College Dist. v. Fair Employment & Housing Com. (1990) 52 Cal.3d 40, 50 [276 Cal.Rptr. 114, 801 P.2d 357].) Thus, the phrase “any recreational activity” must be interpreted to include recreational uses similar to those enumerated in the definitional paragraph in the statute. (Valladares v. Stone, supra, 218 Cal.App.3d at p. 369.)

Applying this principle to the facts at hand, I conclude that climbing upon or being a spectator to climbing upon farm equipment does not resemble any *1115of the recreational activities listed in the statute as those activities are commonly understood. Therefore, I conclude that the statutory immunity provided by section 846 does not shield the property owner in this case.

Citing Valladares v. Stone, supra, 218 Cal.App.3d at page 369, the majority contends that climbing upon farm equipment is indistinguishable from climbing a tree or a cliff. (Maj. opn., ante, at p. 1101.) The majority errs both in practical terms and in terms of statutory construction. First, in our society, the climbing of trees is a common childhood experience remembered by most with great nostalgia (see Valladares v. Stone, supra, 218 Cal.App.3d at p. 369), and the scaling of cliffs is a considered a serious sport; it would be difficult, however, to find someone who considered playing on farm equipment to be anything other than dangerous tomfoolery that should not be encouraged. Second, as recognized by the Valladares court, the activities specified by the majority are a form of “nature contacting,” which is one of the activities specifically enumerated in the statute. (Valladares v. Stone, supra, 218 Cal.App.3d at p. 369.) I, therefore, find the majority’s analogy unpersuasive.

IV.

For these reasons stated herein, I conclude that the immunity provided by section 846 is not applicable to the case at hand. I would affirm the judgment of the Court of Appeal.

Mosk, J., and Kennard, J., concurred.

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

This portion of the majority’s analysis is taken from the much criticized decision in Lostritto v. Southern Pac. Transportation Co. (1977) 73 Cal.App.3d 737, 749 [140 Cal.Rptr. 905],