Metropolitan News-Enterprise


Monday, November 2, 2020


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C.A.’s Majority Eschews Literal Application of Exception to Recreational Use Immunity

Yegan Says Statute Which Denies Immunity Where ‘Landowner’ Expressly Invites Person Onto Property Applies, Under Agency Theory, Where Invitation Is by Son of Owners; Perren Dissents


By a MetNews Staff Writer


A statute that renders recreational use immunity unavailable where the injured plaintiff was expressly invited onto property “by the landowner” applies equally where the invitation was extended by the child of the landowners, the Court of Appeal for this district held Friday, with a dissenter charging that majority was judicially legislating.

Acting Presiding Justice Kenneth Yegan wrote the majority opinion, and was joined by Justice Martin J. Tangeman. Justice Steven Z. Perren dissented.

Yegan and Tangeman relied on the 2000 Court of Appeal decision in Calhoon v. Lewis by the Fourth District’s Div. One and “a modicum of common sense”; Perren based his view on the wording of the statute.

The majority’s opinion reverses a finding for landowners who were sued by a woman who, at age 15, was injured while riding his motorcycle on a motocross track on their premises. He had been invited not by them but by their son, then 18.

At issue was the applicability of Civil Code §846. Subd. (a) 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 those premises to persons entering for a recreational purpose, except as provided in this section.”

One of three exceptions is set forth in subd. (d)(3) which renders immunity inapplicable as to “[a]ny persons who are expressly invited rather than merely permitted to come upon the premises by the landowner.”

On the basis of that wording, San Luis Obispo Superior Court Judge Linda D. Hurst instructed a jury that the express-invitation exception to immunity applies only if one of the landowners, defendants Donald Young or Christina Young, beckoned plaintiff Mikayla Hoffmann to come onto their property.

Majority Opinion

“The erroneous instruction struck at the heart of the case and prejudiced appellant,” Yegan declared.

He said the instruction rendered the exception “inapplicable as a matter of law because it was undisputed” that the landowners’ son, Gunner Young, “had expressly invited appellant.”

Friday’s opinion reverses the defense judgment as to two causes of action—general negligence and premises liability—as to which immunity had been pled as a defense.

Yegan wrote:

“We hold that where, as here, a child of the landowner is living with the landowner on the landowner’s property and the landowner has consented to this living arrangement, the child’s express invitation of a person to come onto the property operates as an express invitation by the landowner within the meaning of section 846, subdivision (d)(3), unless the landowner has prohibited the child from extending the invitation. Thus, Gunner’s express invitation of appellant stripped his parents of the immunity that would otherwise have been provided to them by section 846.”

He elaborated:

 “If a person is living with his parents, must he ask his parents for permission to bring a friend onto his parents’ property? Or do his parents, by allowing him to live on the property, impliedly permit him to invite friends to the property? We use a modicum of common sense in selecting the latter alternative. Absent very unusual circumstances, such as an express order not to bring a friend to the property, it is reasonable to say that, [so long as they are living together, a child may invite a guest onto the parents’ property.

“We recognize that the language chosen by the Legislature says that the exception applies only to persons ‘expressly the landowner….Gunner was not the landowner. But the statute does not preclude a landowner from delegating authority to a child to invite guests onto the property for social purposes. Such a delegation creates an agency relationship.”

Fourth District Decision

Yegan cited the decision in Calhoon, in which the landowners were sued by a person who was injured on their property, onto which he had been invited by their son. He had been invited there to meet their son and drive downtown to visit the son’s girlfriend.

While waiting for the son to come out of the house, he skateboarded on the driveway and was injured.

Justice Judith Haller recited that the landowners contended that §846(d)(3) did not apply because that “exception contemplates an express invitation to participate in recreational activities, not an express invitation merely to enter the property.” She replied:

“This novel argument is not supported by any applicable authority.”

The injured person had been “expressly invited,” she stressed

Perren’s Dissent

Perren argued:

“The majority, in effect, has rewritten the unambiguous language in the statute to include language that is neither stated nor reasonably inferred….Nothing in the statute contemplates that the landowner’s express invitation may be implied from an invitation issued by the landowner’s child.”

He went on to say:

“Here, Gunner was not a landowner and Mikayla was not the landowners’ personal guest. According to the majority, she was the landowners’ implicit guest which, in its view, is tantamount to an ‘expressly invited’ guest….There is no authority for this proposition.”

The dissenter added:

“[I]it makes no sense for a statute to state the landowner must issue an express invitation and then apply an implied agency theory to hold that a child living on the property can implicitly issue an express invitation on the parent landowner’s behalf.

“In sum, limiting the express invitation language in section 846, subdivision (d)(3) to ‘the landowner’ not only is tidier, but it also is what the statute says.”

He said Calhoon was not in point, because the Court of Appeal in that case merely “disagreed” that “this exception to immunity requires an express invitation to participate only in recreational activities.”

Yegan’s Rejoinder

The majority opinion responds to Perren by saying:

“The dissent theory is a slave to literalism. Yes, the statute affording immunity only uses the word, ‘landowner.’ But an appellate court should not subscribe to the dictionary rule of jurisprudence….The statute does not even purport to deal  with the law of agency, which is a staple of both common and  statutory law. By the dissent theory, only a fee simple owner of property is a ‘landowner’ and only he or she, personally, can give consent. We do not purport to confer principal-agent status to son for business or other purposes. We only hold that for purposes of section 846 immunity, the son of a ‘landowner’ can invite, i.e., expressly consent, to bring a person onto the land.  This eviscerates section 846 immunity and this is the fair import of Calhoon.”

The case is Hoffman v. Young, B292539.


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