Opinion
B226634
12-09-2011
RAMONA CHAVEZ et al., Plaintiffs and Appellants, v. CITY OF SANTA FE SPRINGS et al., Defendants and Respondents.
Moreno, Becerra & Casillas and Arnoldo Casillas for Plaintiffs and Appellants. Kutak Rock, Edwin J. Richards, Christopher D. Glos and Kari L. Probst for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. VC052946)
APPEAL from a judgment of the Superior Court of Los Angeles County. Yvonne T. Sanchez, Judge. Reversed with directions.
Moreno, Becerra & Casillas and Arnoldo Casillas for Plaintiffs and Appellants.
Kutak Rock, Edwin J. Richards, Christopher D. Glos and Kari L. Probst for Defendants and Respondents.
SUMMARY
A teenager on a city-sponsored camping trip died from head injuries suffered after he slipped in a mountain stream and went over a waterfall. His mother sued the city and one of its employees for wrongful death, alleging that the defendants' negligence led to the tragedy. The trial court found the negligence claims were barred by the terms of a release signed by the mother and son, and granted the defendants' summary judgment motion. On appeal, the mother contends the trial court erred in granting summary judgment because material questions of fact remain as to whether the City is entitled to enforce the release against Chavez, and as to whether (if it can) the defendants' conduct constituted gross negligence barring application of the release for that reason. We agree with the mother, and therefore reverse.
FACTUAL AND PROCEDURAL BACKGROUND
We state the facts in the light most favorable to Chavez, which we accept as true for the purposes of this appeal from the summary judgment in the City's favor. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
In August 2008, defendant and respondent City of Santa Fe Springs (City) took a group of 20 or more high school students on a five-day City-sponsored camping trip to a state park at the base of Mt. Whitney, near Lone Pine, California in the eastern High Sierra mountains. At a mandatory pre-trip meeting the City answered parents' questions and concerns about the trip's safety, assuring them that their children would be safe and would be supervised "at all times" during the trip.
Mount Whitney is the United States' highest mountain outside of Alaska, rising to an elevation of 14,494 feet above sea level. The events in this case took place in and around a campsite at Whitney Portal, the trailhead for the Mount Whitney Trail at an altitude of about 8,300 feet. (http://www.mount-whitney.com.)
The City transported the campers, fed them, and provided all necessary equipment for the trip's planned activities. Seven City staff members (two of whom were law enforcement personnel with no supervisorial duties) accompanied the group as chaperones. Participants on the trip were not required to have had any wilderness or camping experience (and there was no evidence that any of them did), and none of the staff members received any special training regarding camping or hiking.
Some of the City's staff members had been on previous City-sponsored trips to the area, had been to a waterfall about a mile from the campsite, and were aware of the risks that someone might slip and fall there. However, in planning for the trip there was no determination of the campers' level of outdoor experience; there was no discussion of the type or condition of the shoes or other equipment the campers should bring on the trip; and there apparently was no staff discussion of the slippery surfaces that might be encountered at the waterfall, of safety guidelines to be imposed on the campers, or of precautions that could or should be taken in light of the risks.
Decedent John Chavez (John), then 16-1/2 years old, was a camper on the 2008 trip. Before the trip John and his mother, plaintiff and appellant Ramona Chavez (Chavez), read, signed, and returned to the City a "Liability Release Form." That release (with blanks filled in where underlined) stated:
I, John Chavez fully understand that my participation in Mt. Whitney Camping Trip, scheduled for Tuesday, August 5th - Saturday, August 9th, 2008, (the "Event") may expose me to the risk of personal injury, death, or property damage. I hereby acknowledge that I am voluntarily participating in the Event and agree to assume any such risks.
I hereby release, discharge, and agree not to sue the City of Santa Fe Springs, its officers, employees and agents (collectively, the "City"), for any injury, death or damage to or loss of personal property arising out of, or in connection with, my participation in the Event, from whatever cause.
In consideration of being permitted to participate in the Event, I hereby agree, for myself, my heirs, administrators, executors and assigns, that I shall indemnify and hold harmless the City from any and all claims, demands, actions or suits, arising from or in connection with my participation in the Event.
I HAVE CAREFULLY READ THIS DOCUMENT AND FULLY UNDERSTAND ITS CONTENTS. I AM AWARE THAT IT IS A FULL RELEASE OF ALL LIABILITY, AND SIGN IT OF MY OWN FREE WILL.
Dated: 8/1/08 John Chavez [signature]
Participant
Ramona Chavez [signature]
Parent/Guardian (if under age 18)
Chavez also attended a mandatory pre-trip parents' meeting, at which City personnel addressed parents' questions and concerns about safety (among other subjects). The parents at the meeting, including Chavez, were assured that their children would be safe and would be "supervised at all times" during the trip by the staff. However, the trip's itinerary (which apparently was not shared with the parents) included daily planned "free time" during which the teens were not supervised by the staff, and were permitted (and even encouraged) to explore the surrounding area as long as they did not go alone and told a staff member where they were going. While the City offered no evidence that the parents were shown the itinerary or were told about the unsupervised free time, a staff member thought that the stream and waterfall might have been mentioned at the parents' meeting. Chavez relied on the City's representations in allowing John to go on the trip.
During "free time" on the second day of the trip, John and several other campers, including Andrew Campero, received permission to hike to a nearby stream and waterfall about a mile from the campsite; they were not accompanied by City staff members. They were not told (then or at any other time) not to climb above or near the waterfall.
At some point they left the road or trail and hiked along a stream to the base of the waterfall. Some of the campers stopped at the pond area near the waterfall and did not go any further. John and at least two other boys proceeded to climb on the wet rocks in the stream, but at some point the two others declined to go further. John continued across the stream, despite the others' admonitions to stop. John was at least 10 feet ahead of Campero, and was blocked from his view by foliage and rocks, when Campero heard a shout and saw John slide down the wet rocks, and he "must have went over," out of Campero's sight.
After sliding down the rocks until he found an area in the stream where he could walk, Campero found John lying face down in the water, motionless. Campero and others pulled John from the water. Despite their efforts to perform CPR, John died from injuries sustained in the fall.
Chavez sued the City and Richard Brown, a City staff member, on behalf of herself and John's estate, seeking damages for negligence and, as to Brown, punitive damages.
We do not separately identify Brown, whose interests are aligned with those of the City, unless otherwise noted.
The City moved for summary judgment, arguing that Chavez's claims were barred by the release she and her son had signed, and that the City was immune from liability under the doctrine of primary assumption of the risk, and Government Code section 831.7, because John was engaged in a hazardous recreational activity (rock climbing) at the time of his injury. Chavez argued in opposition that the release was unenforceable, as a matter of public policy because it involved a matter of "public interest" (see Tunkl v. Regents of University of California (1963) 60 Cal.2d 92; Gavin W. v. YMCA of Metropolitan Los Angeles (2003) 106 Cal.App.4th 662, 671); because public policy precludes release of the City's liability for its gross negligence, shown by the evidence here; and because the release was obtained by fraud. She also argued that the doctrines of primary assumption of the risk and governmental immunity do not apply.
The trial court rejected Chavez's "public interest" argument, and held that "reasonable minds could not differ in determining that the conduct complained of was not grossly negligent as a matter of law." Concluding the release was valid and enforceable to absolve the City of responsibility for any ordinary negligence, the court granted the City's motion for summary judgment. It did not address the issues of fraudulent inducement, primary assumption of the risk, or governmental immunity. Chavez filed a timely appeal from the resulting judgment.
DISCUSSION
Chavez argues that triable issues of fact remain as to whether the City's conduct constituted gross negligence, which would preclude the City's reliance on the release to absolve it from liability; that the City's affirmative misrepresentations that the campers would be under staff supervision at all times also precludes the City's reliance on the release; and that her action is not barred by either the doctrine of primary assumption of the risk or governmental immunity. She contends that the trial court therefore erred by ordering summary judgment.
Chavez's appeal does not argue the public interest issue, and it does not challenge the order striking the request for punitive damages. We deem these issues abandoned. (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99.)
Summary judgment provides a mechanism for the trial court to determine whether a party's evidence will be sufficient to require the weighing process of a trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) It is appropriately entered if the submitted papers show that there is no issue of material fact to be tried and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)
We review the order granting summary judgment de novo. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) We independently review the papers supporting and opposing the motion, considering all the evidence offered in connection with the motion and any inferences that the evidence reasonably supports, applying the same rules and standards as the trial court. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476; Hernandez v. Department of Transportation (2003) 114 Cal.App.4th 376, 382.)
To secure summary judgment, the moving defendant may show that one or more elements of the cause of action cannot be established, or that there is a complete defense to the cause of action "and that he is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) Once that burden is met, the burden "shifts to the [other party] to show that a triable issue of one or more material facts exists as to that cause of action." (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, at p. 850.)
We view the evidence and its permissible inferences most favorably to plaintiff, liberally construing her evidentiary submission and strictly scrutinizing defendant's showing. We resolve all doubts and ambiguities in plaintiff's favor. (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at p. 768; Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502.)
A. Fraudulent Inducement.
The trial court found that the release that Chavez and John had signed was valid and enforceable, and that it absolved the City of responsibility for any ordinary negligence. "An action in negligence requires a showing that the defendant owed the plaintiff a legal duty, the defendant breached the duty, and the breach was a proximate cause of the injuries suffered by the plaintiff. [Citation.] A release may negate the duty element of a negligence action." (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1356.)
In order to absolve the City of responsibility for any ordinary negligence, it was the City's burden to establish the validity of the release as applied to the facts of this case. (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 780, fn. 58 (City of Santa Barbara).) Unless the City could establish as a matter of law that the release was valid and enforceable against Chavez, it could not negate the possibility that it would be found liable for its ordinary negligence.
Chavez argues that the City cannot conclusively establish the validity and enforceability of the release, because the staff's affirmative representations that the campers would be under supervision "at all times" had induced Chavez to sign the release and to permit John to go on the trip. If a jury were to be persuaded that the City's staff made those representations although they knew the trip's itinerary would afford the campers unsupervised free time, it might be entitled to find that Chavez's signature on the release had been fraudulently induced and that the release is not enforceable against Chavez. (Seeger v. Odell (1941) 18 Cal.2d 409, 414 [one who has been induced by fraudulent misrepresentations to sign agreement is entitled to have agreement set aside]; Blankenheim v. E.F. Hutton & Co. (1990) 217 Cal.App.3d 1463, 1474 [same].) In other words, there were triable issues with respect to whether the release was valid and enforceable against Chavez, sufficient to preclude the City from negating the possibility that it could be found to be liable to Chavez for its ordinary negligence.
The City does not address the merits of this issue. Instead it argues, first, that this court cannot (or at least should not) hear this argument because Chavez failed to raise the issue in the trial court in response to the summary judgment motion; and second, that the argument should be rejected because Chavez's complaint pleaded no cause of action to set aside the release for fraud. The first response is factually wrong; the second is legally unfounded.
It is not accurate that Chavez failed to raise the misrepresentation defense in the trial court. Chavez argued in the trial court that her agreement to sign the release had been induced by the staff's misrepresentations that the campers would be supervised at all times, knowing that they would not:
— In the trial court Chavez presented the declarations of herself and another parent testifying that before she signed the release, at the City's pre-trip parents' meeting, City personnel expressly represented that the children would be supervised "at all times" during the trip, and that she relied on that representation when she signed the release and consented to John's participation.
— In the trial court Chavez argued that these facts "support the conclusion that the City staff intentionally made meaningful and material misrepresentations to the parents," and that Chavez "relied on those promises."
— Chavez orally argued to the trial court that the release, on which the City relied to justify summary judgment, was unenforceable because it was obtained through misrepresentations of material facts.
Chavez thus raised in opposition to summary judgment that her signature on the release had been induced by fraud
It is true that Chavez's complaint did not plead a cause of action for fraud, or seek relief from the release based on the City's misrepresentation and its effect in inducing her to sign it. But it was the City that offered the release as a defense to its liability; and it was the City that bore the burden of establishing that the release is enforceable as a matter of law. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) The absence of an affirmative challenge to the release's enforceability did not shift to Chavez the burden of establishing the release's non-enforceability; she had only to show the City's failure to affirmatively establish that the release is enforceable as a matter of law. (Code Civ. Proc., § 437c, subd. (p)(2).) Chavez successfully fulfilled that burden by showing facts that could support a finding that her execution of the release had been induced by the City's representation that the campers would be supervised at all times, when it knew they would not.
The City's failure to address the fraudulent inducement issue on its merits effectively concedes Chavez's argument that if it were to be accepted by the trier of fact, the proof of fraudulent inducement would preclude the City from asserting the release as a defense to its liability. (Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 529 [party effectively concedes issue by failing to address it in brief].) The order granting summary judgment therefore was unjustified.
Because the evidence presented in connection with the summary judgment motion is sufficient to raise issues as to whether the release can be enforced against Chavez, the order granting summary judgment must be reversed.
B. Gross Negligence.
Chavez contends that even if the release is enforceable to bar her action for ordinary negligence (i.e., even if the trier-of-fact were to determine that the release was not barred by fraudulent misrepresentation), the release cannot be enforced to release the City from liability for gross negligence. We agree.
1. Chavez's Release Cannot Apply To Liability Arising From Gross Negligence.
The standards by which release forms are judged are well established. Waiver and release forms are strictly construed against the defendant. (Lund v. Bally's Aerobic Plus (2000) 78 Cal.App.4th 733, 738.) Nevertheless, "a release need not achieve perfection" to be effective (National & Internat. Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215 Cal.App.3d 934, 938); it suffices if it "constitutes a clear and unequivocal waiver with specific reference to a defendant's negligence." (Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 755.) Because Chavez does not contend that the release in this case is unclear or ambiguous in its scope or meaning, or that either she or John did not understand its terms, her evidence does not challenge the City's contention that the release is valid and effective to absolve the City of liability to the extent permitted by law.
In the absence of circumstances involving public interest, the law permits agreements to absolve a defendant from future liability for ordinary negligence. (City of Santa Barbara, supra, 41 Cal.4th at pp. 757-758.) The public policy is different, however, when the charged conduct is not confined to ordinary negligence. As a matter of public policy, a release cannot validly absolve a party from its future liability for conduct amounting to gross negligence. (Id. at pp. 750-751, 776-777.)
It may even encourage such agreements. See Hohe v. San Diego Unified Sch. Dist. (1990) 224 Cal.App.3d 1559: "The public as a whole receives the benefit of such waivers so that groups such as Boy and Girl Scouts, Little League, and parent-teacher associations are able to continue without the risks and sometimes overwhelming costs of litigation. Thousands of children benefit from the availability of recreational and sports activities. . . . Every learning experience involves risk. In this instance [the plaintiff] agreed to shoulder the risk. No public policy forbids the shifting of that burden." (Id. at p. 1564.)
In City of Santa Barbara, the court, while recognizing the social benefits that waivers of future liability can bring, nevertheless firmly rejected policy concerns that the rule barring waiver of liability for gross negligence is unworkable or tends to foster untoward liability. (41 Cal.4th at pp. 766-767, see pp. 768-776.) While recognizing concerns that this rule might "trigger[ ] wholesale elimination of beneficial recreational programs and services," (id. at p. 769) it rejected the argument "that considerations of public policy mandate the adoption of a rule under which agreements releasing liability for future gross negligence always, or even generally, would be enforced." (Id. at pp. 776, 774-776 & fn. 52 [In states that have declined to enforce releases as to gross negligence, "the predicted demise of recreational opportunities apparently has not come to pass"].) The court held that "'the distinction between "ordinary and gross negligence" reflects "a rule of policy" that harsher legal consequences should flow when negligence is aggravated instead of merely ordinary.'" (Donnelly v. Southern Pacific Co. (1941) 18 Cal.2d 863, 871; see Colich & Sons v. Pacific Bell (1988) 198 Cal.App.3d 1225, 1240.) A release agreement, "to the extent it purports to release liability for future gross negligence, violates public policy and is unenforceable." (City of Santa Barbara, supra, 41 Cal.4th at p. 751.)
The issue here, then, is whether when every fact and inference is construed in favor of Chavez and against the City, the conduct shown by Chavez's evidence could be found to constitute gross negligence. If it could, a jury would be entitled to find that the release in this case was ineffective to absolve the City of liability to Chavez.
2. The City's Proof Fails To Establish That No Triable Issue Of Fact Remains As To Whether The City's Conduct Could Constitute Gross Negligence.
Whether conduct constitutes gross negligence ordinarily is a question of fact, depending on the nature of the act and the surrounding circumstances shown by the evidence. (City of Santa Barbara, supra, 41 Cal.4th at pp. 767, 781 [triable issue of fact whether evidence shows lack of care sufficient to constitute gross negligence]; Sorensen v. Allred (1980) 112 Cal.App.3d 717, 725-726 [allowing comparison of conduct constituting negligence and reckless conduct]; Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 358.) The City's proof is insufficient to establish as a matter of law that its conduct could not be found to constitute gross negligence. It therefore fails to establish that the release is effective to absolve it of liability, and that it is entitled to judgment in its favor.
Distinguishing ordinary and gross negligence, our Supreme Court has explained that "'[o]rdinary negligence'—an unintentional tort—consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm. [Citation.] [¶] 'Gross negligence' long has been defined in California and other jurisdictions as either a '"'want of even scant care'"' or '"'an extreme departure from the ordinary standard of conduct.'"'" (City of Santa Barbara, supra, 41 Cal.4th at pp. 753-754; Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1185-1186.) The test is objective: "if a reasonable person in defendant's position would have been aware of the risk involved, then defendant is presumed to have had such an awareness. [Citation.]" (People v. Watson (1981) 30 Cal.3d 290, 296; accord People v. Bennett (1991) 54 Cal.3d 1032, 1036.)
The City of Santa Barbara case arose from a child's death at a city-operated summer camp for developmentally disabled children. The camper was a good swimmer, but was known by the camp staff to have suffered frequent seizures, including one earlier the day of her death. For that reason the camp had assigned a counselor to attend her at all times. However, both her attendant and the pool lifeguards apparently were looking away, and failed to pull her from the water in time, when she suffered another seizure after jumping into the pool. A release signed by the camper's mother had absolved the city of liability for any negligence. (City of Santa Barbara, supra, 41 Cal.4th at pp. 751-753.)
In City of Santa Barbara, supra, the Supreme Court did not evaluate what evidence would be required in order to establish gross negligence; it declined to review the lower court's determination and opinion (vacated by the decision's review) that the evidence in the record in that case could support such a finding. (41 Cal.4th at pp. 778, fn. 56 & 781, fn. 61.) But whatever the evidence might have been in the City of Santa Barbara case, the record in this case shows far more to justify a finding of gross negligence than a mere isolated lapse. Rather here we have a failure to exercise due care in implementing an otherwise well-conceived plan for the campers' safety. The degree of supervision and control the City should have exercised over the campers is a matter of judgment, and undoubtedly it is true that less rigorous and intrusive supervision may reasonably be required of high school students than of younger children. Nevertheless, even a school's ordinary duty of care for its pupils, during a regular school day and on its own familiar campus, requires some degree of supervision. "Such regulation is necessary precisely because of the commonly known tendency of students to engage in aggressive and impulsive behavior which exposes them and their peers to the risk of serious physical harm." "[A]dolescent high school students are not adults and should not be expected to exhibit that degree of discretion, judgment, and concern for the safety of themselves and others which we associate with full maturity." (Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 748.)
"'[W]e should not close our eyes to the fact that . . . boys of seventeen and eighteen years of age, particularly in groups where the herd instinct and competitive spirit tend naturally to relax vigilance, are not accustomed to exercise the same amount of care for their own safety as persons of more mature years.'" (Dailey v. Los Angeles Unified Sch. Dist., supra, 2 Cal.3d at p. 748.)
Dealing with these common adolescent characteristics of limited experience and judgment, paired with outsized competitiveness and bravado, acquiescing in even isolated deviations from well-established rules "may constitute negligence." (Dailey v. Los Angeles Unified School District, supra, 2 Cal.3d at p. 749.) And when the rules are neither familiar nor well established, as the evidence shows here, the risks of violations and resulting injuries are all the greater.
The area to which the campers were taken is one of extraordinary beauty, extraordinary interest and opportunity for youths from an urban setting, and extraordinary danger to those unfamiliar with its hazards. It will be for a jury to determine the extent to which more thorough planning and closer supervision might have been appropriate or required under the circumstances, and the extent to which it would have been effective in reducing to acceptable levels the risks of injury and death to the campers.
The evidence of gross negligence—an extreme departure from the ordinary standard of conduct—is not that the City failed to monitor and control the campers' every move, to insulate and protect them from every possible danger, or to prevent isolated violations of established rules. Nevertheless, a jury could conclude from the record on summary judgment that the City acted with gross negligence by encouraging campers to undertake the potentially hazardous activities of exploring the surrounding terrain and the waterfall, without ever undertaking even minimal precautions or planning for the exposure of the adolescent campers—who could be expected to have enthusiasm exceeding their judgment—to the unfamiliar and untamed environment of the High Sierras:
— no requirement of adult supervision during excursions to areas of known danger that might be outside of the experience of city youth, such as running streams, slippery rocks, and waterfalls;
— no rules, warnings, admonitions not to approach—or even how to approach— these dangerous areas;
— no staff training or staff awareness with respect to such dangers;
— no education, advice, or discussion with the campers about these dangers;
— no discussion of these dangers with the campers' parents.
The evidence is thus susceptible to the conclusion that the City failed to consider, or even to recognize, the risks that would potentially face the campers whose safety and well-being the City had undertaken to protect; that it failed to formulate any plan about how to meet and address those risks; and that it failed to implement the sorts of programs—using appropriate supervision, education, discussions, admonitions, or any other means—either to protect the campers from obvious dangers, or to enable them to recognize and guard against those dangers for themselves. From this a jury could find that the City was guilty of gross negligence.
We emphasize that "we are not passing judgment upon the merits of plaintiffs' allegations, rather, we are viewing the allegations in the light most favorable to plaintiffs, as required by the law." (Rosencrans v. Dover Images, LTD (2011) 192 Cal.App.4th 1072; B.L.M. v. Sabo & Deitsch, supra, 55 Cal.App.4th at p. 834.) However, it is programmatic failures such as those discussed above that could be found to transform evidence of acts constituting isolated lapses of attention or judgment into a "'"'want of even scant care'"'" or "'"'an extreme departure from the ordinary standard of conduct.'"'" (City of Santa Barbara, supra, 41 Cal.4th at pp. 753-754; Eastburn v. Regional Fire Protection Authority, supra, 31 Cal.4th at pp. 1185-1186. See Rosencrans v. Dover Images, LTD, supra, 192 Cal.App.4th at p. 1089 [evidence could support a finding that motocross track operator's failure to provide appropriate safety precautions consistent with well-accepted standards constituted extreme and egregious departure from the standard of care]; Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 857 [evidence could support finding that riding coach was grossly negligent in persuading mother to allow her daughter to compete in equestrian competition on recently injured and unfit horse].)
In light of the scope and circumstances of the project undertaken by the City, we cannot hold as a matter of law that the circumstances shown by the evidence could not be found to constitute gross negligence.
C. The Existence Of Issues Of Fact As To Gross Negligence Precludes Summary Judgment On The Basis Of Governmental Immunity And Primary
Assumption Of Risk.
The primary assumption of risk doctrine provides that under certain circumstances a defendant may owe no legal duty to protect a participant in recreational activities from risks—including those arising from negligent conduct—that are inherent in the activity. (Knight v. Jewett (1992) 3 Cal.4th 296, 315-316; City of Santa Barbara, supra, 41 Cal.4th at p. 779.) This doctrine, when applicable, provides the defendant with a complete defense to a charge of negligence resulting in injury from a risk inherent in the sport; it is analogous to an express agreement releasing liability for negligence such as those in this case and the City of Santa Barbara case. (Knight, supra, 3 Cal.4th at pp. 308-309, fn. 4 [under primary assumption of risk doctrine, a defendant that is insulated from liability for injuries incurred in recreational activities may remain liable for conduct "outside the range" of ordinary activity of sport]; see City of Santa Barbara, supra, 41 Cal.4th at p. 779.)
The primary assumption of risk doctrine applies here, the City argues, to preclude its liability to Chavez for injuries resulting from risks that are inherent in the activity in which John was engaged when he died—apparently the "sport" of scrambling over wet rocks to cross a stream at the top of a waterfall. The summary judgment should be affirmed, it argues, because John (and by signing the release, both John and Chavez) "explicitly assumed the risk" of the injuries John suffered.
The City contends also that Chavez's suit is barred by the governmental immunity provided in section 831.7 of the Government Code, which provides immunity to public agencies and their employees from suit by "any person who participates in a hazardous recreational activity . . . for any damage or injury . . . arising out of that hazardous recreational activity." (Gov. Code, § 831.7, subd. (a).) "Hazardous recreational activity," is defined as "recreational activity conducted on property of a public entity that creates a substantial, as distinguished from a minor, trivial, or insignificant, risk of injury to a participant or a spectator," specifically including "rock climbing." (Gov. Code, § 831.7, subd. (b) & (b)(3).)
We need not evaluate the extent to which the primary assumption of risk doctrine, or the governmental immunity of Government Code section 831.7, might ever apply to activities such as those in this case. Even if John's "recreational" activities come within the meaning of Government Code section 831.7 and the doctrine of primary assumption of risk (a question we do not address), these doctrines do not apply to conduct that constitutes gross negligence. The same public policy factors that preclude enforcement of the release to immunize the City from liability for its gross negligence also preclude the City from relying on other immunity doctrines to reach the same result.
Government Code Section 831.7, subdivision (c)(1)(E) explicitly provides that the immunity doctrine does not apply to "[a]n act of gross negligence by a public entity or a public employee that is the proximate cause of the injury." Similarly, with respect to the doctrine of primary assumption of risk, defendants are not excused from liability to the extent they have failed to use due care not to increase the risks over and above those inherent in the sport in which the participant is engaged. (Eriksson v. Nunnink, supra, 191 Cal.App.4th at p. 839, citing Knight v. Jewett, supra, 3 Cal.4th at pp. 315-316.)
Here, the evidence that could support a finding of gross negligence could equally support a determination that the City failed to use due care not to increase the risks to John and the other teenaged campers when (for example) the staff encouraged them to use their hours of free time to explore the wilderness area, and the waterfall, without supervision, without guidance, and without education or admonitions with respect to the dangers that activity might present. The same evidence that indicates the existence of triable issues of material fact with respect to the applicability of the release therefore applies as well to preclude the trial court's implied determination that the City's liability is necessarily precluded by the doctrines of primary assumption of risk and governmental immunity.
The evidence presented in connection with the summary judgment motion demonstrates the existence of triable factual issues with respect to the enforceability of the release of the City's liability for negligence, and with respect to whether the City's acts and omissions constitute gross negligence. The entry of summary judgment therefore was error, requiring reversal.
DISPOSITION
The judgment is reversed. The superior court is directed to withdraw its order granting summary judgment, and to enter an order denying the defendants' motion for summary judgment. The appellants are to recover their costs on appeal.
NOT TO BE PUBLISHED.
CHANEY, J. I concur:
MALLANO, P. J. JOHNSON, J., Concurring in part and Dissenting in part.
I concur with the majority that Chavez fulfilled her burden to defeat summary judgment by raising a triable factual issue as to whether the release is enforceable by virtue of Chavez's reliance on the City's representation that campers would be supervised "at all times." If a jury believed the City made such a promise knowing the trip itinerary included unsupervised free time, it might find Chavez was fraudulently induced to sign what would then be an unenforceable release.
I part ways with the majority opinion, however, with regard to whether the conduct shown by Chavez's evidence could constitute gross negligence. In my view, the City demonstrated as a matter of law that its conduct could not be found to have been grossly negligent.
"'Gross negligence' long has been defined in California and other jurisdictions as either a '"'want of even scant care'"' or '"'an extreme departure from the ordinary standard of conduct.(City of Santa Barbara, supra, 41 Cal.4th at p. 757, see pp. 753-754; Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1185-1186.) The test is objective: "if a reasonable person in defendant's position would have been aware of the risk involved, then defendant is presumed to have had such an awareness. [Citation.]" (Donnelly v. Southern Pacific Co. (1941) 18 Cal.2d 863, 871; accord People v. Bennett (1991) 54 Cal.3d 1032, 1036.) Viewing the allegations in the light most favorable to Chavez, I find no evidence in this record that reasonably could be found to demonstrate a "'"want of even scant care,"'" or the "'"extreme departure from the ordinary standard of conduct"'" necessary to establish a finding of gross negligence on the part of the City's staff. (City of Santa Barbara, supra, 41 Cal.4th at p. 754.)
Chavez points to several factors she claims could support a finding of gross negligence. They include the City's custody over the campers, its representation that campers would be supervised "at all times," evidence that some staff members had been to the waterfall area where John slipped and fell but did not require the campers to wear special shoes, and that staff allowed campers to roam unsupervised during "free time." The essence of Chavez's argument is that the City knew that teenagers, who might have worn only rubber-soled tennis shoes, might head on their own to view a mountainside stream, pond and waterfall which were known, unsurprisingly, to be wet, slippery and rocky. These assertions fall far short of the claims that the Supreme Court found might rise to the standard of gross negligence articulated in City of Santa Barbara. Like the trial court, I see no evidence of conduct beyond the limits of ordinary negligence. While the City was arguably negligent by failing to warn the campers away from the stream and waterfall or to keep them under constant watch, its conduct does not meet the Supreme Court's criteria for gross negligence or reckless misconduct. (City of Santa Barbara, supra, 41 Cal.4th at p. 754, fn. 4 [defining reckless misconduct as "conduct by a person who may have no intent to cause harm, but who intentionally performs an act so unreasonable and dangerous that he or she knows or should know it is highly probable that harm will result"].)
In my view, allowing high-school age campers a limited period of free time during which to take short unsupervised hikes with fellow campers in the forest surrounding the group's campsite simply fails to satisfy the City of Santa Barbara test for gross negligence. Nor is such conduct the equivalent of the extreme or egregious departure from the standard of care found in either Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, or Eriksson v. Nunnink (2011) 191 Cal. App. 4th 826, upon which Chavez relies.
In Rosencrans, supra, 192 Cal.App.4th 1072, the plaintiff was riding a motorcycle when he fell near a platform in an area out of view of other riders at a motocross facility, and was struck by another cyclist. The "caution flagger," who was supposed to have staffed the platform to alert riders to the presence of fallen cyclists, was not on duty when plaintiff fell. The court found the release plaintiff signed unenforceable against a claim of gross negligence. (Id. at p. 1081.) It noted the dangerous nature of the sport, and also found a specific duty on the part of the course operator to provide some form of warning system such as the presence of caution flaggers. (Id. at p. 1084.) Also, the course owner had a safety manual requiring flaggers to stay at their stations whenever riders were on the course, and expert testimony was presented that caution flaggers were required at all such times. (Id. at p. 1086.) Because the evidence could support a finding that the absence of a caution flagger was an extreme and egregious departure from the standard of care given and the applicable safety manual and in light of knowledge of the particular dangers posed, the claim of gross negligence should have survived summary judgment. (Id. at p. 1089.)
Nor does this case resemble Eriksson, in which the defendant asserted that allegations of gross negligence in a wrongful death action were barred by a release. There, a teen's riding coach knew the horse her student rode in an equestrian competition had recently been injured and was unfit to compete. The coach, however, persuaded the girl's mother that the horse was fit to ride and the mother allowed her daughter to compete. The horse faltered during the competition, causing the girl to fall off. The horse fell on the girl, causing her death. (191 Cal.App.4th at pp. 832-836.) The court found summary judgment inappropriate because triable issues existed as to whether the coach's conduct was grossly negligent and outside the scope of a general release. (Id. at p. 857.)
I also disagree with the majority's sentiment that the negligent conduct at issue here "shows far more to justify a finding of gross negligence than [the] mere isolated lapse shown in City of Santa Barbara."In that case, a disabled child drowned while left unattended in a swimming pool at a city-sponsored summer camp for disabled children. (41 Cal.4th at pp. 752-753.) The evidence showed the child had had seizures in the past while attending the same summer camp, at least one of which occurred during a swimming activity. Precisely because of its knowledge of the child's history of seizures, the city took special precautions and appointed a monitor whose sole purpose was to keep her under close supervision. The evidence also showed that, on the day she died, the child suffered a seizure in the monitor's presence while waiting to enter the pool locker room. 45 minutes after her first seizure the child was permitted to swim and suffered a second seizure which caused her to drown while the lifeguards' and monitor's attention was directed elsewhere. (Ibid.) The Supreme Court declined to decide whether the evidence was sufficient to permit the case to proceed to trial on a theory of gross negligence. (Id. at pp. 778, fn. 56, 781, fn. 61.) Rather, the Court found only that a release signed by the child's parents "purporting to release liability for future gross negligence committed against a developmentally disabled child who participates in a recreational camp designed for the needs of such children violates public policy and is unenforceable." (Id. at pp. 779-780.)
Here, Chavez presented no evidence that would support a finding of gross negligence, and no evidence that any staff member intentionally performed an act so unreasonable and dangerous that he or she knew or should have known it was highly probable harm would result. Unlike Rosencrans, Chavez presented no evidence to show that allowing high school students limited unsupervised time to hike with other campers constituted an extreme sport or an egregious departure from an established standard of care. Unlike Eriksson, Chavez failed to present evidence the City forced or urged John to use equipment its staff knew was damaged or unfit for use. And, unlike City of Santa Barbara, Chavez failed to present any evidence that the City was aware John had a special need for a heightened level of attention, or of any experience with a camper during any of several prior annual camping trips to the same site which might have alerted it to the particular danger posed to John.
The waterfall presented no danger of falling if campers stayed off the wet, slippery rocks in the stream above. That fact was evident to the boys who accompanied John on the hike and who exercised common sense, refusing to follow him as he climbed on all fours up slippery rocks and through the stream, and who urged John to stop. That this may have been John's first exposure to a mountain stream or waterfall does not negate the duty of a near adult to exercise common sense to recognize an obvious danger. "'A body of water — either standing as in ponds or lakes or running as in rivers and creeks . . . — is a natural object . . . . [T]he danger of drowning in it is an apparent danger, the knowledge of which is common to all . . . .' [Quoting Peters v. Bowman (1896) 115 Cal. 345, 350, disapproved on other grounds by King v. Lennen (1959) 53 Cal.2d 340, 344 [rejecting arbitrary approach to landowner liability for death or injury to trespassing children under "attractive nuisance" theory based on type of condition or structure involved, in favor of broader circumstantial approach set forth in Rest. Torts, § 339].]" (Betts v. City &County of San Francisco (1952) 108 Cal.App.2d 701, 702 [refusing to impose liability under theory of attractive nuisance where seven-year-old boy drowned in a fenced-off artificial reservoir maintained in city park because the body of water was "an open and obvious source of danger" (id. at p. 703)]; see also Polk v. Laurel Hill Cemetery Assn. (1918) 37 Cal.App. 624, 634 [no liability where eight-year-old boy drowned in open and unfenced reservoir because "inherent dangers" posed by open body of water are "obvious to a child"]; Beeson v. City of Los Angeles (1931) 115 Cal.App. 122, 128, disapproved on other grounds by King v. Lennen, supra, 53 Cal.2d at p. 344 [following same rule]; Melendez v. City of Los Angeles (1937) 8 Cal.2d 741, 746, disapproved on other grounds by King v. Lennen, supra, 53 Cal.2d at p. 344 [approving principle articulated in Peters, Polk and Beeson, and affirming sustaining of a demurrer without leave to amend in case in which two boys drowned playing in an open storm drain].)
In sum, the City staff could reasonably expect that John — even if an arguably impulsive teen — like his equally impetuous companions, would recognize the obvious danger posed by climbing up a steep slope of wet, slippery rocks. Any failure by staff to warn John or the other teen campers against entering or attempting to traverse the stream, while arguably negligent, was not extraordinarily so. Moreover, it was hardly "highly probable" that an accident as tragic as John's might occur when there was no evidence any staff member knew similar accidents had occurred before. It must be remembered that, just as occurred here, tragic accidents occasionally occur. That such accidents may result from ignoring common, obvious dangers posed by conditions found around streams, ponds and waterfalls is an insufficient basis upon which to impose liability under a theory of gross negligence on the City for its failure to warn a 16-1/2-year-old of a clearly evident risk.
I find the majority's reliance on Dailey v. Los Angeles Unified School Dist., supra, 2 Cal.3d 741, misplaced. At issue in Dailey was a school district's statutory liability under principles of ordinary negligence for failure adequately to supervise students during the school day on school grounds. I agree that the City could anticipate that a group of high school age campers might engage in "impulsive behavior" and fail to "exhibit that degree of discretion, judgment, and concern for the[ir] safety . . . which we associate with full maturity." (Id. at p. 748.) Nevertheless, on this record it is clear that, to the extent any "herd instinct" was at play, that instinct — for all teens present at the stream but John — was to recognize and avoid the obvious danger posed by attempting to cross a stream flowing swiftly over slippery rocks and into a steep waterfall. The question is whether the City should be charged with the expectation that a high school youth would fail to realize the risk involved in attempting to navigate the stream. As the Supreme Court stated in a related context, "[c]ertainly there is always some degree of danger that because of thoughtlessness or bravado a youth" might engage in risky behavior. (O'Keefe v. South End Rowing Club (1966) 64 Cal.2d 729, 742-743 [diving off a pier without first ascertaining the depth of the water below].) The fundamental reason for a rule imposing a duty on a landowner to protect children from known dangers is the child's inability to protect himself against the peril. (Id. at p. 743.) That reason ceases to exist as the child ages. Indeed, as "'the age of a child increases, conditions become fewer for which there can be recovery under this rule, until at some indeterminate point, probably beyond the age of sixteen, there are no longer any such conditions.'" (Id. at p. 744, quoting Rest. 2d Torts, § 339, com. c.) This principle is equally applicable here where the question is whether the City is liable on a theory of gross negligence for failing to foresee that a normal youth in his late teens possessing presumably average intelligence for his age would not appreciate the obvious dangers presented by trying to cross a slippery stream swiftly flowing toward a steep waterfall.
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JOHNSON, J.