KAREN PURDY v. JOHN KING, ET AL.

Case No.:  1-13-CV-240183

DATE:  September 16, 2014

TIME:  9:00 a.m.

DEPT.: 8

As an initial matter the motion for summary judgment by Defendant Palo Alto Medical Foundation is GRANTED as unopposed.  Defendant submitted uncontroverted expert testimony that defendant’s care and treatment of plaintiff met the standard of care and that no conduct by defendant caused injury to plaintiff.  No triable issues of material fact exist as to these requisite elements.

The party moving for summary judgment bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact.  Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4^th 826, 850.  “A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action.  …  The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.”  Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4^th 66, 72; internal citations omitted.

The moving party’s declarations and evidence will be strictly construed in determining whether they negate or disprove an essential element of a plaintiff’s claim “in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (or opposing party’s) favor.”  Johnson v. American Standard, Inc. (2008) 43 Cal 4^th 56, 64, parentheses added.  While the same standards of admissibility govern both, the opposition declarations are liberally construed while the moving party’s evidence is strictly scrutinized.  Saelzler v. Advanced Group 400 (2001) 25 Cal 4^th 763, 768.

The Motion for Summary Judgment by Defendant John King and Cliffs Resort LLC (“Defendants”) is DENIED as follows.

Defendants have failed to meet their initial burden to establish that there are no triable issues of material fact as to whether Recreational Use Immunity under Civ. Code §846 affords them a complete defense to Plaintiff’s Premises Liability cause of action.  The statute is intended to protect landowners from liability for injuries to uninvited (and even unknown) visitors who enter their property for a recreational purpose.  It is undisputed that Plaintiff’s purpose for being on Defendants’ property on the night in question was as a paid guest of the resort attending a wedding.

Even if it is assumed for purposes of argument that Plaintiff’s presence on the property to attend a wedding, or to walk from the property down to the beach, constitutes a recreational activity an obvious triable issue of material fact remains as to whether Plaintiff’s undisputed status as a paid guest of the resort for the night in question with permission to roam the property makes Civ. Code §846 inapplicable because “[t]his section does not limit the liability which otherwise exists . . . (b) for injury suffered in any case where permission to enter for the above purpose was granted for a consideration . . .”  It is irrelevant that the general public may also access the beach from Defendants’ property.  Plaintiff paid to be on the property and was owed a duty of care.

Defendants have also failed to meet their initial burden to show that no triable issue exists as to whether they were negligent in maintaining the property, an essential element of premises liability.  “The question is whether in the management of his property, the possessor of land has acted as a reasonable person under all the circumstances.  The likelihood of injury to plaintiff, the probable seriousness of such injury, the burden of reducing or avoiding the risk, the location of the land, and the possessor’s degree of control over the risk-creating condition are among the factors to be considered by the trier of fact in evaluating the reasonableness of a defendant’s conduct.”  Sprecher v. Adamson Companies (1981) 30 Cal 3d 358, 372.  See also CACI 1001.

Defendants operate a resort at which paying guests stay overnight.  Guests are apparently free to roam the property and the property includes the pathway from the resort structures to the stairway to the beach (until the point at which the City of Pismo Beach assumes responsibility.)  Defendants make the resort’s close access to the beach part of their marketing to the public.  A jury could reasonably conclude that Defendants knew or reasonably should have known that the nearby beach would be attractive to their nighttime guests and that Defendants should have taken reasonable steps to make the pathway/stairway safe in a nighttime situation, such as either lighting the portion of the stairway they are responsible for, posting a sign lit or otherwise visible at night to guests approaching from the resort buildings warning that the stairway steps were uneven and not placed a uniform distance apart or blocking access to the stairway from the resort pathways at night.

Finally, Defendants have also failed to meet their initial burden to establish that there are no triable issues of material fact as to whether the doctrine of primary assumption of the risk provides them a complete defense to Plaintiff’s premises liability claim.  While the doctrine’s scope is broader than sports or sports-related activities, Defendants have failed to establish that an impromptu decision by a group of their guests to attempt to walk down to the beach at night constitutes an organized active recreational activity or pursuit involving an inherent risk of injury to voluntarily participants that cannot be eliminated without altering the fundamental nature of the activity in a way that would work a basic alteration of or cause abandonment of the activity.  See Nalwa v. Cedar Fair, L.P. (2012) 55 Cal 4^th 1148, 1156-1157.  As noted above, a reasonable finder of fact could conclude that any risk, inherent or not, from such activity could have been eliminated through reasonable efforts.