Thursday, April 6, 2017
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C.A. Allows Campground Injury Suit to Go Forward
Panel Says Payment of Camping Fee Eliminates Immunity for All defendants
By a MetNews Staff Writer
Payment of consideration for the use of recreational space precludes any defendant, including one that did not receive any part of the fee, from pleading the statutory immunity set forth in Civil Code §846, the First District Court of Appeal ruled yesterday.
“We hold that the payment of consideration in exchange for permission to enter a premises for a recreational purpose abrogates the section 846 immunity of any nonpossessory interest holder who is potentially responsible for the plaintiff’s injuries, including a licensee or easement holder who possesses only a limited right to enter and use a premises on specified terms but no right to control third-party access to the premises,” Justice Therese Stewart wrote for the court.
Div. Two agreed with San Mateo Superior Court Judge Steven Dylina that Pacific Gas & Electric Company lacks a recreational immunity defense in the suit for injuries sustained by Zachary Rowe, who was 12 years old when a 75-foot tree fell on him as he slept in his tent on a family camping trip to San Mateo County Memorial Park in 2012. He survived but suffered catastrophic injuries, and his family sued San Mateo County, PG&E, and various private tree contractors for negligence.
The plaintiffs contend that PG&E, which owns and maintains an electric line at the park that serviced a nearby restroom, was negligent in failing to adequately maintain and inspect its equipment and the vegetation in the vicinity, and in failing to warn campground users of the danger posed by diseased and rotten trees.
Dylina denied PG&E’s summary judgment motion based on §846’s immunity for owners of interests in recreational property. Although it was undisputed that the utility’s license under a utility tariff constituted an interest in the park property, Dylina found the consideration exception applicable, but certified the issue for interlocutory appeal.
Stewart, writing for the Court of Appeal, said PG&E was asking the court to add to the statute a provision not in the text, limiting the exception to the party that received the consideration. Nor would limiting the exception as the utility proposes serve the statutory purpose of the immunity statute, which is to encourage private landowners to open their property for free public use, she said.
The justice said “it would be illogical to retain immunity for some holders of property interests (i.e., nonpossessory interest holders who did not receive the consideration) when no purpose with which the Legislature was concerned would be served,” and rejected the utility’s contention that allowing recovery from holders of some interests would “increase the pressure on all landowners” to bar recreational users from their property.
The company, Stewart said, “posits not a single, real-world example of how that might come to pass, and we are hard-pressed to think of any.”
PG&E was represented on appeal by Robert H. Wright and Jeremy B. Rosen of Horvitz & Levy. Timothy G. Tietjen and Gerald Clausen represented the plaintiff.
The case is Pacific Gas & Electric Company v. Superior Court (Rowe), A146495.
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