Kandel v. City of Thousand Oaks

Filed 8/26/08 Kandel v. City of Thousand Oaks CA2/6

Opinion following rehearing

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

While hiking in lands owned and managed by Conejo Open Space Conservation Agency (COSCA), appellants and three other minors came upon a storm drain. They climbed into a catch basin and entered a drainage pipe, which angled sharply upward. Appellants turned back and waited at the mouth of the pipe while the three others continued to climb. On their descent, they slipped and collided with appellants, injuring them. Appellants filed a tort action against the City of Thousand Oaks and one of the minors, Dennis Urquhart, alleging a dangerous condition of public property and negligence. The City and Urquhart each moved for summary judgment, which the trial court granted. We conclude that appellants failed to raise a triable issue of fact that there was a dangerous condition of public property or that Urquhart was negligent. We affirm.

Appellants filed a petition for rehearing with this court, which we denied. Our Supreme Court granted appellants' petition for review and directed us to vacate our order denying the petition and grant rehearing.

FACTS AND PROCEDURAL HISTORY

On February 16, 2004, appellants Lucas Kandel and Jordan Flores decided to hike in the Arroyo Conejo Open Space. Appellants were accompanied by three other minors--Justin Flores, Jonathan Flores and respondent Dustin Urquhart. Justin Flores and Jonathan Flores are not parties to the appeal.

Three of the boys had visited the Arroyo Conejo Open Space the day before the accident and returned to explore a cave. They brought water, food and flashlights. The boys started the hike at the Rancho Conejo Playground. They visited a waterfall, then proceeded to a second waterfall where they explored a cave. They continued north along the Conejo creek in an area that had no trail. The boys stopped when they reached a storm drain and catch basin. By this time they had been hiking for two to three hours and the temperature was approximately 80 to 90 degrees.

The catch basin had 2- to 4-foot high walls. The boys climbed over the wall and felt cool air blowing out of a drainage pipe. They sat down inside the basin and could see water coming through the pipe and moss in the bottom of the basin. Urquhart suggested that the boys explore the pipe. Justin said it was not a good idea.

The boys crawled into the pipe on their hands and feet in a hunched-over position. Urquhart was in the lead, followed by Jonathan Flores, Lucas Kandel, Jordan Flores and Justin Flores. After advancing three feet into the pipe it was too dark to see. As they crawled, the slope of the pipe changed abruptly and became very steep. Jordan Flores became frightened and turned around. Lucas Kandel said he would stay with Jordan. Urquhart, Jonathan Flores and Justin Flores climbed 400 feet into the pipe.

Appellants (Lucas and Jordan) left the pipe, but reentered it to be in the shade. They waited for 15 minutes, and then called up to the three other boys, who

had reached a flat area. The boys called out that they were on their way down, and appellants stopped about 5- to 10-feet from the exit, while still inside the pipe. The other boys crabwalked down the pipe, to keep themselves above the water. Justin sat down in the water, so he could slide down the pipe. The boys began sliding too fast and lost control. They tumbled down and collided with appellants, injuring them.

Urquhart began the litigation as a plaintiff. Appellants and Urquhart, through their guardians ad litem, filed a tort action against the City of Thousand Oaks, Conejo Recreation and Parks District, and the Conejo Open Space Conservation Agency (collectively City), alleging a single cause of action against the City for negligence.

The operative pleading is the third amended complaint.^[1] In that complaint, appellants named Urquhart as a defendant. They alleged a cause of action against the City for a dangerous condition of public property and against Urquhart individually for negligence.

Appellants contended in the third amended complaint that they were injured while sitting at the open end of the storm drain. They claimed that the "open storm pipe and open catch basin/water flow dissipater" constituted a dangerous condition and proximately caused appellants' injuries. They alleged that the City could have prevented their injuries by installing a device to "secure the openings" of the storm drain and catch basin.

The storm drain had been the property of COSCA since 1995. Appellants claimed that COSCA knew or should have known that people were entering the pipe and catch basin because there was trash and evidence of campfires nearby. The catch basin was marked with graffiti and part of the basin had been repainted to cover it. Appellants indicated that there were no warning signs near the storm drain, nor was there a fence, grate or barrier to protect people from injury. They claimed that the danger presented was that others could climb in the drain pipe without knowing of the steep incline, lose traction and risk injury to themselves or others.

As to the negligence cause of action against Urquhart, appellants alleged only causation and damages. They did not assert the other elements necessary to state a claim for negligence: that Urquhart owed them a duty of care or had breached such a duty. Appellants stated, "As a direct and legal result of defendant URQUHART's negligence in climbing in the darkened, wet and steeply inclined portion of the drain pipe [appellants] were hurt and injured in their health, strength and activity."

In his answer, Urquhart raised the defenses of primary assumption of the risk and "comparative fault." He cross-complained for indemnity and declaratory relief. In the alternative, he claimed that appellants and the City should share liability for any negligence.

The City and Urquhart each moved for summary judgment. The trial court granted both motions.

Motions for Summary Judgment

The City alleged in its motion for summary judgment that 1) there was no dangerous condition of public property; 2) the actions of third parties (i.e., the boys sliding down the pipe) cannot constitute a dangerous condition; 3) the condition of which appellants complained was open and obvious; 4) the action is barred by primary assumption of the risk; and 5) the City is immune from liability under Government Code sections and 830 and 831.7.

Appellants filed opposition to the City's motion. They contended that the City was liable for their injuries because it had actual or constructive notice but failed to take measures to protect against the dangerous condition. Appellants claim they used the property with due care and did not behave recklessly by sitting inside the pipe waiting for their friends.

Appellants also alleged that the doctrine of primary assumption of the risk had no application and thus could not bar appellants' recovery. They asserted that they did not assume a risk of injury because they were unaware of the condition of the pipe until their companions entered it. They had no knowledge of the configuration of the pipe, so could not appreciate the danger it presented "in conjunction with the other children's conduct."

Urquhart filed a separate motion for summary judgment asserting that primary assumption of the risk was applicable, and appellants were indeed barred from recovery. Appellants opposed the motion on the grounds that the doctrine was inapplicable (allowing them to proceed against Urquhart). Appellants argued in the alternative that, if the doctrine applied, then Urquhart's conduct increased the risk inherent in a recreational activity and it was so reckless as to fall outside the doctrine. In support of their allegation of recklessness, appellants stated that "climbing into a dark, wet, steeply inclined, manmade drain pipe which [Urquhart] had never climbed should be undoubtedly considered reckless conduct." They contended that a jury should determine whether Urquhart's conduct was reckless and whether he violated a duty owed to them. They did not identify a duty of care nor allege that a duty was breached.

Trial Court's Ruling

The trial court granted the motions for summary judgment, stating, "[I]t does not appear that the property could be used with due care, and so as an alternate ground in addition to the primary assumption of risk analysis, . . . this does not appear to be a dangerous condition as defined by Government Code Section 830, so on both those grounds the government entities' motions are granted." It stated, "[A]s to the motion filed by the Urquhart defendants, that motion is granted."

A formal order was issued granting summary judgment in favor of the City and Urquhart. The court indicated that "Primary Assumption of the Risk applies and bars both [appellants'] actions." It concluded that the City's motion was granted "based upon the application of the Doctrine of Primary Assumption of the Risk and the undisputed [f]acts established that no 'dangerous condition' of public property as defined by Government Code Section 830 et seq., existed or proximately caused or contributed to [appellants'] injuries." The rulings on both motions were reduced to a single judgment, which was entered on August 11, 2006.

On appeal, appellants claim the trial court erred in granting the motions for summary judgment. The City and Urquhart both filed reply briefs. Although Urquhart's counsel appeared at oral argument, he did not participate.

DISCUSSION

Summary judgment is appropriate when no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. A defendant seeking summary judgment has the burden of establishing through admissible evidence a complete defense to the action or the absence of an element essential to plaintiff's case. We independently review the motion on appeal to determine the effect of the supporting declarations and evidence. (Code Civ. Proc., 437c, subd. (c); Rosenblum v. Safeco Ins. Co. (2005) 126 Cal.App.4th 847, 856.) We affirm the summary judgment if it is correct on any legal theory. (Western Mutual Ins. Co. v. Yamamoto (1994) 29 Cal.App.4th 1474, 1481; Jordan v. Allstate Ins. Co. (2007) 148 Cal.App.4th 1062, 1071.)

Dangerous Condition of Public Property

A dangerous condition is "a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used." (Gov. Code,  830, subd. (a).)

A public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that (1) the property was in a dangerous condition at the time of the injury; (2) the injury was proximately caused by the dangerous condition; and (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred. ( 835.) Where the facts are undisputed, the existence of a dangerous condition is a question of law. (Bonanno v. Central Contra Costa Transit Authority (2003)30 Cal.4th 139, 148.)

Appellants argue on appeal that it was reasonably foreseeable that a hiker would, on a hot day, sit in the storm drain to cool off. It was also foreseeable that a hiker might enter the drain pipe, climb the steep incline "and potentially fall down it and injure themselves or others." They contend that this is especially likely with children, who are held to a lower standard of care than adults.

We disagree. The trial court correctly concluded that no dangerous condition existed. Appellants climbed into a catch basin, crawled up a slippery storm drain in the dark, crawled back down the pipe, and sat inside. This cannot be said to be a use of the storm drain with due care. Nor was it reasonably foreseeable that the storm drain would have been used in this manner. The storm drain was accessible only by two to three hours of hiking in a remote area without marked trails. It was not foreseeable that the minors would obtain access to the storm drain, much less climb inside the pipe.

We reject appellants' argument that the storm drain constituted a dangerous condition because there were no warning signs or a fence or grate to act as a barrier to prevent the boys' access. Appellants were not injured by the storm drain or catch basin, but by the collision when their friends slid out of the drain pipe. The City owed no duty to protect appellants from the actions of their friends.

Simple Negligence and Assumption of the Risk

Generally, one owes a duty of ordinary care not to cause an unreasonable risk of harm to others. (Civ. Code, 1714, subd. (a); Shin v. Ahn (2007) 42 Cal.4th 482, 488.) The existence of a duty is a legal question that we review de novo. (Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 993.) To establish a cause of action for negligence, a plaintiff must prove the defendant owed him a duty of care. (Lackner v. North (2006) 135 Cal.App.4th 1188, 1197.) An exception to this general rule is the doctrine of primary assumption of the risk. (Ibid.)

Under primary assumption of the risk, the defendant owes no duty to protect another from harm arising from simple negligence. (Shin v. Ahn, supra, 42 Cal.4th at p. 489; Knight v. Jewett (1992) 3 Cal.4th 296, 314-315.) The doctrine is a complete bar to recovery. (Knight, at p. 315.) Although primary assumption of the risk is commonly associated with liability for sports injuries, it has also been applied to injuries in the workplace. (Huffman v. City of Poway, supra, 84 Cal.App.4th at p. 994, fn. 22; see also Priebe v. Nelson (2006) 39 Cal.4th 1112 [commercial kennel worker]; Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 542 [private safety employees fighting fire].) Determining whether the primary assumption of risk doctrine applies is a legal question to be decided by the court. (Knight, at p. 313.)

In a sports context, primary assumption of the risk bars liability because the plaintiff is said to have assumed the particular risks inherent in a sport by choosing to participate. (Shin v. Ahn, supra, 42 Cal.4th at p. 489 [primary assumption of risk applies to golf].) A defendant's liability turns on the whether his conduct could be considered an "inherent risk" of the sport. (Knight v. Jewett, supra, 3 Cal.4th at pp. 316-317.) A coparticipant in a sport is only liable when he intentionally injures the plaintiff or engages in conduct so reckless it was totally outside the range of activities involved in the sport. (Id. at pp. 318, 320; Ford v. Gouin (1992) 3 Cal.4th 339, 342.)

Secondary assumption of the risk is a separate doctrine which applies when both plaintiff and defendant are negligent. It generally occurs when the defendant has created a risk and the plaintiff chooses to encounter that risk. (Knight v. Jewett, supra, 3 Cal.4th at pp. 314-315.) In sum, primary assumption of the risk concerns the question of duty and bars recovery. Secondary assumption of the risk "is merged into the comparative fault scheme" and concerns the calculation of damages. (Id. at p. 315; Shin v. Ahn, supra, 42 Cal.4th at pp. 448-499; Cheong v. Antablin (1997) 16 Cal.4th 1063, 1068.)

Nature of Activity

To determine whether primary assumption of the risk rather than comparative negligence principles apply, a court must examine the nature of the sport and the relationship of the defendant to the sport. (Shin v. Ahn, supra, 42 Cal.4th at p. 489; Knight v. Jewett, supra, 3 Cal.4th at pp. 316-317.) Under certain circumstances, it must also consider the relationship of the plaintiff and defendant to each other. (Childs v. County of Santa Barbara(2004) 115 Cal.App.4th 64, 70.)

In Childs, a minor fell and was injured while riding a scooter over an uneven section of a county sidewalk. She filed an action against the county, which defended on the basis of primary assumption of the risk. The trial court ruled that scooter riding is a recreational activity, and falling is an inherent risk of that activity, thus recovery was barred. It granted the county's motion for summary judgment.

We concluded that the record did not establish that the minor was engaged in a "sport or sport-related recreational activity" subject to the doctrine of primary assumption of risk. (Childs v. County of Santa Barbara, supra, 115 Cal.App.4that pp. 70-71.) "Falling or a comparable mishap is possible in any physical activity, but is not necessarily an inherent danger of the activity." (Id. at p. 73.) We reversed the order granting summary judgment because a triable issue existed as to whether the minor was riding her scooter in such a manner that primary assumption of the risk would bar recovery. (Id. at pp. 74-75.)

Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322, established that recreational dancing is not subject to primary assumption of risk. (Id. at p. 329.) A defendant who operated a dance hall spread Ivory Snow Flakes on the dance floor, causing a dancer to slip on the substance and fall. The trial court granted summary judgment in favor of the defendant. The reviewing court reversed, holding that the Knight rule was inapplicable because falling was not a risk inherent in the activity of recreational dancing. (Bush, at p. 329.) Moreover, the defendant had breached a duty of due care by spreading the substance on the floor. Thus, the dancer's fault in dancing on the floor did not operate as a complete bar to her recovery. (Id. at p. 330.)

Appellants assert that the primary assumption of the risk doctrine is inapplicable here because cooling off in the drain pipe was not a sport and did not involve any challenge or potential risk of injury. They claim that, although they began their day by hiking, the only activity they were engaged in at the time of the injury was "relaxing and cooling down in the storm drain" while their companions continued to climb into the pipe.

Appellants, Urquhart and the other minors were not engaged in a sport at the time of the injury. All five boys hiked into an open space and had stopped to explore several areas, including the storm drain. All five entered the drain, although appellants turned back. That three of the boys slipped on the pipe, fell and collided with appellants does not transform their hiking and exploration into a sport subject to primary assumption of the risk.

The City was not a participant in the boys' activity. It simply owned and maintained the property upon which they chose to hike and explore. The trial court erred in concluding that appellants' recovery was barred by the primary assumption of the risk. However, the error does not alter the outcome. As has been established, no dangerous condition existed. (Gov. Code,  835.) Thus, the City bears no liability for appellants' injuries.

The trial court could have resolved the question of Urquhart's liability by a general duty analysis, rather than applying primary assumption of the risk. However, we affirm the trial court's grant of summary judgment if it is correct on any theory.(Western Mutual Ins. Co. v. Yamamoto, supra, 29 Cal.App.4th at p. 1481; Jordan v. Allstate Ins. Co., supra, 148 Cal.App.4th at p. 1071.) Although appellants asserted a cause of action for negligence in their complaint, they did not allege the breach of a duty of care. In their motion for summary judgment, they attempted to allege that Urquhart was reckless by stating only that "climbing into a dark, wet, steeply inclined, manmade drain pipe which [Urquhart] had never climbed should be undoubtedly considered reckless conduct." They did not identify a duty of care that Urquhart owed to the boys, nor did they allege that such a duty was breached.

Because appellants and Urquhart were not engaged in a sport, the trial court erred in determining that primary assumption of the risk barred recovery. For this reason, it is unnecessary for us to reach appellants' argument that Urquhart's conduct increased the risk inherent in the sport. The trial court's grant of summary judgment in favor of Urquhart was proper

Civil Code Section 1714

In both their petition for rehearing and petition for review, appellants argue that the duty referred to in Civil Code section 1714 "encompassed" a duty not to increase the risks inherent in the hike. This is a mischaracterization of the statute. Section 1714 describes an ordinary duty of care for simple negligence. It makes no reference to the primary assumption of the risk doctrine.

Hazardous Recreational Activity

The City raises as a defense that it is immune from liability pursuant to Government Code section 831.7 because appellants were engaged in a hazardous recreational activity on public property. We need not address the contention because we have concluded that appellants were not engaged in a recreational activity when they were injured.

Sovereign Immunity

In our previous opinion, we determined that primary assumption of the risk did not apply to the City or Urquhart, but we did not specify the ground for our affirmance of summary judgment in Urquhart's favor. In their petition for rehearing, appellants contend that summary judgment in favor of Urquhart should therefore be reversed.

In their petition for review, appellants suggest that, by our affirmance, we created a new defense for individuals who negligently injure a plaintiff on public property. Appellants claim that, by affirming the judgment as to Urquhart we allowed him to shield himself behind the City. They inquired, "Is a private defendant whose negligent act on public property injures [a] plaintiff vicariously shielded from liability as a matter of law if the public entity is shielded from liability under the doctrine of sovereign immunity?"

In support of their position, appellants cite Munoz v. City of Union City (2007) 148 Cal.App.4th 173 (Munoz II), which stands for the principle that tort liability of public entities must either be based upon violation of a statutory duty or on a specific duty of care. (Id. at p. 182.)

Munoz involved two separate appeals. The first dealt with the issue of liability and the second appeal addressed allocation of fault. The action arose from a police officer's fatal shooting of a woman during a confrontation at her home. Her family filed an action against the city and the officer. The jury returned a verdict against them on theories of negligence and battery. It apportioned negligence 45 percent to the city, 50 percent to the officer and 5 percent to the victim. (Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1083 (Munoz I).)

The city and officer appealed. The appellate court reversed the portion of the verdict against the city on the theory of direct negligence. The court held that the city could not be held liable for direct negligence because its liability was not grounded upon a violation of a statutory duty. (Munoz I, supra, 120 Cal.App.4th at p. 1082.) It remanded the matter to the trial court which reduced plaintiffs' recovery by 45 percent. (Munoz II, supra, 148 Cal.App.4th at p. 177.)

In an appeal from the reduction in recovery, the appellate court explained that sovereign immunity does not mean simply that the plaintiffs cannot recover damages from a public entity. (Munoz II, supra, 148 Cal.App.4th at 182.) It also means that no portion of fault could be allocated to the city, because it was not a tortfeasor. "In the absence of duty, there can be no tort liability, and no fault can be allocated to a party that is not a tortfeasor." (Ibid.) The Munoz II court reversed the judgment and remanded to the trial court with directions to allocate fault 9 percent to the deceased victim and 91 percent to the officer. (Id. at p. 186.)

Appellants cite Munoz II for the proposition that, where a public entity is immune from liability, "a negligent private tortfeasor bears all the responsibility for damages not attributable to the tort victim's own negligence." This statement is misleading. It appears to suggest that a tortfeasor is responsible for negligence in excess of his proportion of fault. Munoz II does not stand for the proposition appellants suggest,nor is it applicable to our facts. Summary judgment was proper because appellants did not raise a triable issue of fact that Urquhart was negligent.

DISPOSITION

We affirm the grants of summary judgment in favor of respondent City and respondent Urquhart. The City and Urquhart are each are awarded their costs on appeal.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

YEGAN, J.

William Liebmann, Judge

Superior Court County of Ventura

______________________________

Lowthorp, Richards, McMillan, Miller & Templeman, Alan R. Templeman, Dean W. Hazard, Lascher & Lascher, Wendy C. Lascher, Aris E. Karakalos for Plaintiffs and Appellants, Lucas Kandel and Jordan Flores.

Law Offices of Joseph L. Stark & Associates, Joseph L. Stark, John M. Bergerson for Defendants and Respondents, City of Thousand Oaks, Conejo Recreation and Park District, and Conejo Open Space Conservation Agency.

Law Offices of Cho & Brown, Gary M. Schumacher for Defendant and Respondent, Dustin Urquhart.

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^[1]The record contains the original complaint, a first amended complaint and third amended complaint.