NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
As a team participant in an off-road vehicle race, plaintiff Craig Diller rode his motorcycle alongside the race course to monitor the driver's progress. While traveling on an unmarked and unobstructed road that intersected the race course, plaintiff noticed an approaching dust cloud and attempted to stop his motorcycle. Failing to stop in time, plaintiff fell over his motorcycle and landed in the path of an oncoming off-road vehicle.
Plaintiff sued Mojave Desert Racing, Inc. and one of its officers, Patricia Williams, for recovery of personal injury damages. Defendants filed a motion for summary judgment on the ground that plaintiff's claim was barred under the primary assumption of risk doctrine or the recreational use immunity provision. In granting defendants' motion for summary judgment, the trial court agreed with defendants' primary assumption of risk argument, but rejected their immunity claim under Civil Code section 846.
On appeal, plaintiff argues the trial court erroneously concluded that the primary assumption of risk doctrine applied. In addition to contesting plaintiff's argument, defendants alternatively argue that the court erred in rejecting their claim of recreational use immunity under Civil Code section 846.
For the reasons stated below, we conclude the court should not have granted summary judgment on any ground. In particular, we conclude that a triable issue of fact remained as to whether defendants increased the risk of harm inherent in the sport of off-road racing by failing to mark and blockade the road upon which plaintiff traveled.
2. Factual and Procedural History
On October 31, 1998, after obtaining a permit from the United States Department of the Interior, Bureau of Land Management (BLM), defendants organized and conducted a 300-mile, off-road vehicle race near Barstow, California. Defendants assessed a $360 entry fee for racers, but no fee for spectators.
Plaintiff's uncle, Tom Costa, entered the race and paid the entry fee. Although plaintiff personally did not pay an entry fee, he attended the race to help his uncle. He voluntarily performed certain tasks, including fueling the car, inspecting the tires, and checking for other mechanical problems. Plaintiff also traveled to different parts of the course to observe whether his uncle safely maneuvered past certain checkpoints.
During the first lap of the race, plaintiff rode his motorcycle to the first checkpoint traveling east on a dirt road, south on Highway 247, and then west on a power line road. Plaintiff intended to continue traveling on the power line road and possibly cross to the other side of the race track. Because his view was obstructed by the bushes to his right, he did not see the oncoming vehicles. Aware that he was nearing the race track, but uncertain as to the track's exact location, plaintiff reduced his speed. At some point, plaintiff noticed an approaching dust cloud and applied his brakes. Plaintiff's handlebars turned and the motorcycle flipped over. Plaintiff was thrown over the motorcycle, which never made it onto the track. Plaintiff, however, landed face down on the race track in the path of an oncoming off-road vehicle.
Joshua Roark and his companions, who were standing across the track about 200 yards south of the first checkpoint, had attempted to get plaintiff's attention. Plaintiff, however, had not noticed anyone waving him down.
Generally, defendants' safety policy included the placement of warning signs, flagmen, and either barricades, tape, or flags at every intersection. Paul Duffy, defendants' race director, explained that the power line road was barricaded and marked with caution signs before the accident. No flagmen were assigned to that location. After the accident, a park ranger for the BLM confirmed the presence of warning signs at the accident location. The power line road, as Duffy explained, remained partially open to allow a man who lived within the race course to pass through. Defendants admitted that all the other roads that intersected the race course were barricaded except the road upon which plaintiff traveled.
Plaintiff noticed no warning signs or barricades on the power line road. According to plaintiff, nothing warned him or prevented him from entering the race track. When Roark traveled along the same road earlier that same day, he also noticed no warning signs or markers at that particular intersection.
After plaintiff fell onto the race track, one of the off-road vehicles ran over his body. As a result of the accident, plaintiff suffered severe injuries including a heart attack, fractured leg, a broken shoulder, and an anterior cruciate ligament tear.
To recover for his injuries, plaintiff filed a lawsuit against defendants for negligence. In his second amended complaint, plaintiff alleged that defendants negligently, recklessly, willfully, and maliciously failed to place warning signs or barricades along the power line road.
Defendants filed a motion for summary judgment on the grounds that plaintiff's negligence claim was barred by either the recreational use immunity under Civil Code section 846 or the primary assumption of risk doctrine.
The trial court rejected defendants' argument under the recreational use immunity because it found a triable issue of material fact as to the applicability of an exception to Civil Code section 846 based on whether defendant willfully or maliciously failed to warn against a dangerous condition. The court found conflicting evidence as to whether defendants, despite knowing of the danger posed by an unmarked crossing, failed to place any warnings along the power line road.
The court, however, found defendants' primary assumption of risk argument persuasive. The court reasoned that, as a team participant in an off-road race, plaintiff assumed the inherent risks involved in the sport of off-roading, including the possibility of being struck by another race vehicle. The court found that, even if defendants failed to place warning signs or barricades at the power line road intersection, defendants did not increase the risks inherent in the sport. The court, therefore, granted defendants' motion for summary judgment based on its application of the primary assumption of risk doctrine.
Plaintiff appeals the trial court's judgment.
3. Standard of Review
In reviewing the trial court's decision to grant summary judgment, we independently review the entire record, considering all the nonexcluded evidence presented in the parties' moving and opposition papers. 1 While we strictly construe the defendants' supporting documents, we liberally construe the plaintiff's documents, resolving all doubts as to the propriety of summary judgment in the plaintiff's favor. 2 We determine whether the defendant has negated an essential element of the plaintiff's cause of action, or established the nonexistence of any triable issue of material fact, such that the defendant would be entitled to judgment as a matter of law. 3
4. Assumption of the Risk
Plaintiff claims the trial court erred in applying the primary assumption of risk doctrine to bar his negligence claim against the organizers of the off-road vehicle race.
In Knight v. Jewett, 4 the California Supreme Court examined the interplay between California's comparative fault scheme and the assumption of the risk doctrine in the sports setting. The court summarized: "In cases involving `primary assumption of risk'-where, by virtue of the nature of the activity and the parties' relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury-the doctrine continues to operate as a complete bar to the plaintiff's recovery. In cases involving `secondary assumption of risk'-where the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant's breach of duty-the doctrine is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties." 5 The court concluded that, in determining which doctrine applied, the pivotal question is whether, in light of the nature of the sport involved, defendant breached a legal duty of care to the plaintiff, or rather, had a legal duty to protect the plaintiff against a particular risk of harm in the first instance. 6
In addressing this question, the California Supreme Court noted that, although the defendant generally has no legal duty to eliminate inherent risks, the defendant generally owed sports participants a duty to use due care in not increasing the risks beyond those inherent in the sport. 7 Sports participants, however, usually cannot recover for injury caused by another participant's negligence, which often is treated as an inherent risk of the sport. 8 Significant, therefore, is the defendant's role-i.e., coparticipant in the sport, owner of the sports facility, manufacturer of sports equipment, instructor of the sport, or organizer of a sporting event-in determining the scope of his or her legal duty. 9
Also significant in determining the scope of the defendant's duty in the sport is the nature of the sports activity itself. 10 In many sports, careless conduct is commonplace as players frequently go out-of-bounds, literally and figuratively speaking. 11 In determining the propriety of imposing liability on the defendant, we are mindful, therefore, of whether such imposition of liability would deter vigorous participation in the sport or alter the fundamental nature of the sport. 12
While plaintiff contends that the current case is similar to the case, Branco v. Kearny Moto Park, Inc., 13 defendants contend that this case is analogous to the situation presented in another case, Distefano v. Forester. 14 We find plaintiff's contention more persuasive.
In Distefano, both the plaintiff and the defendant were coparticipants in the sport of off-roading. On a dirt road in an unincorporated desert area of San Diego County, the plaintiff was riding his motorcycle while the defendant was driving his dune buggy. When the plaintiff and the defendant approached the crest of a hill from opposite directions, the defendant's dune buggy went over the hill and collided with the plaintiff's motorcycle. As a result of the head-on collision, the plaintiff suffered serious injuries.
In the litigation that followed, the plaintiff alleged that the defendant negligently operated his dune buggy. The defendant, however, successfully moved for summary judgment on the ground of primary assumption of risk.
The appellate court applied the general test that a participant in an active sport breaches a legal duty to other participants only if he intentionally injures the other participant or engages in conduct that is so reckless as to fall completely outside the range of ordinary activity for that particular sport. 15 In other words, as between coparticipants of a sport, ordinary negligence is generally insufficient to impose liability. 16
In Distefano, the plaintiff neither alleged nor sought leave to amend his complaint to allege intentional or reckless conduct. Because the plaintiff relied solely on a theory of negligence, the plaintiff's claim necessarily failed. 17 After also rejecting the plaintiff's alternative arguments, the court upheld the summary judgment. 18
The facts in Distefano are easily distinguishable from the facts in this case. Here, plaintiff, a team participant in the sport of off-roading, sued defendants, who organized or conducted the off-road race. As stated above, based on defendants' role in the sport, liability may be imposed if defendants increased the risks to the participant beyond those inherent in the sport. 19 Therefore, unlike the situation in Distefano, plaintiff's negligence claim does not necessarily fail without a showing of intentional or reckless conduct.
This case, rather, turns on whether defendants increased the risks to plaintiff over and above those inherent in the sport of off-roading. In resolving this question, plaintiff relies on the Branco case.
In Branco, defendant Kearny Moto Park, Inc. (KMP) designed and operated a bicycle motocross (BMX) park. KMP and other defendants, including the American Bicycle Association (ABA), sponsored the BMX race. Ironically, the ABA boasted that "BMX was `the safest of all the action youth sports.'" 20 The race course included bumps, jumps, turns, straightaways, and obstacles. In particular, the race course offered what was referred to as the "million dollar jump" or the "million dollar doubles," which consisted of two hills. As he tackled the "million dollar jump," the plaintiff wheelied the jump, fell, and suffered serious injuries.
In identifying certain characteristics of the "million dollar jump," the plaintiff's expert stated that the slope of the first hill placed the cyclist in an extremely unbalanced position. The expert also stated that the distance between the hills required the cyclist to travel at a very high rate of speed to clear the second hill. According to the expert, the faulty design of the "million dollar jump" caused the plaintiff's accident.
In Branco, the court observed: "It is not unreasonable to expect a BMX course to refrain from utilizing jumps which by design create an extreme risk of injury. Certainly the jumps, and falls, are inherent to the sport, and under the doctrine of primary assumption of risk, there is no duty to eliminate the jumps entirely, and no duty to protect from injury arising from reasonably designed jumps. However, the sport does not inherently require jumps which are designed in such a way as to create an extreme risk of injury." 21 The court resolved that, "premised on the duty not to utilize dangerously designed jumps, this case falls under the secondary assumption of risk category, and issues pertaining to [the plaintiff's] comparative fault are for the trier of fact to decide." 22 Specifically, the court noted that the trier of fact should determine whether the way in which the "million dollar jump" was designed subjected the plaintiff to an extreme risk of injury. 23
The same reasoning applies in the context of other sports. Courts have imposed a duty of care in the following circumstances: where an owner of a ski resort places a signpost in the ski run where it would be virtually invisible to skiers crossing over to a connector trail; 24 where an owner of a golf course fails to design and maintain the course to minimize the risk of being hit by golf balls; 25 when an owner of a horse-riding facility provides faulty saddles, bridles, and other equipment, or maintained dangerous trails; 26 where a dance hall operator fails to maintain the dance floor in a safe and usable condition; 27 and where an owner of a baseball stadium fails to provide a reasonably safe stadium by protecting patrons seated behind and near home plate from flying balls and bats. 28 Under such circumstances, the owner or operator has a duty not to increase the risk of harm to the participants or spectators beyond that which is inherent in the sport.
Here, defendants' failure to mark or barricade the power line road intersection may have exposed plaintiff to an increased risk of harm. In their separate statement of undisputed facts, defendants admitted: "At every intersection of a road with the race course, other than the road on which plaintiff was riding his motorcycle, the defendants had placed warning signs, flagmen, and other persons, and either barricades, taped in yellow or iridescent pink, or flags for the purpose of warning persons. [Emphasis added.]" Plaintiff presented evidence that at the intersection of the power line road and the race course, there were no warning signs or barricades of any kind. Plaintiff also presented evidence that defendants were aware that travel occurred along the roads that intersected with the race course. In this particular intersection, defendants admitted that, even if partially barricaded, they left enough room for a vehicle to pass through. Based on this evidence, a reasonable trier of fact may find that defendants increased the risk of harm to plaintiff by failing to provide warning signs or failing to barricade the intersecting road.
Plaintiff stated that he intended to cross the race track, but not if he saw cars coming. The race director explained that, unlike on a freeway, the vehicles that travel on defendants' race track may be separated by long distances. So long as the person looks both ways before crossing, accidents may be avoided. The park ranger for BLM noted that many people attempt to cross the race track while a race is in progress. Certainly, if the intersection was clearly marked and plaintiff chose to cross the track despite the presence of oncoming vehicles, any resulting accident would have been entirely his own fault. Based on the evidence presented by the plaintiff, however, there were no warning signs and plaintiff was unaware as to how close he was to the race track. By the time he realized where he was in relation to the race track, it was too late and he fell right into the path of an oncoming race vehicle. Under these circumstances, the operator of the off-road race had a duty to protect plaintiff at this intersection where the greatest danger existed and where such accidents were reasonably to be expected. 29
Moreover, there is no deleterious effect on the sport of off-road racing by imposing upon the operator of an off-road race the duty of maintaining a race track that has adequately marked and barricaded intersecting roads. 30 Certainly, off-roading is an inherently dangerous activity. As noted by the trial court, the sport involves terrain that is rough and rugged, visibility that is obscured by dust clouds, and vehicles that commonly experience mechanical failures. Under such conditions, each participant bears the risk of being struck by another participant's race vehicle. Despite these inherent dangers, unrestricted entry from open roads that intersect the track is not a necessary element of the sport. Participants do not anticipate the threat of non-race vehicles entering the track from intersecting roads, or from plaintiff's vantage point, the threat of unsuspectingly entering the race track in the path of race vehicles. The fundamental nature of the type of off-road racing involved in this case remains untouched by imposing the requirement of warning participants of where the open road ends and the race track begins.
We are not suggesting that the operator of an off-road race must barricade the entire 32-mile race course. However, the operator must provide adequate warnings where the greatest danger exists-namely, intersecting roads which the operator knows or expects people to travel upon during the race.
Based on the evidence presented by the plaintiff in support of his opposition to defendants' motion for summary judgment, defendants may have subjected plaintiff to an increased risk of harm by failing to provide adequate warnings at the intersection of the race track and the power line road. Accordingly, the trial court erred in applying the doctrine of primary assumption of risk as a complete bar to plaintiff's negligence claim. Rather, the doctrine of secondary assumption of risk applies and the trier of fact must sift through the conflicting evidence and determine whether defendants breached their duty of care. We conclude therefore that the court erred in granting defendants' motion for summary judgment.
5. Civil Code Section 846
Although not addressed in plaintiff's opening brief, defendants challenge the trial court's denial of summary judgment on the basis of the recreational use immunity under Civil Code section 846. 31
In his reply brief, plaintiff contends that, in failing to appeal the trial court's denial of summary judgment on this basis, defendants have waived any right to challenge the court's findings under section 846. We disagree. The two parts of the court's judgment are interdependent in that summary judgment on either ground, although discussed in separate parts, would bar recovery. 32 In essence, plaintiff's appeal from the court's order granting summary judgment opens for argument any other ground for upholding the court's judgment. 33
Nevertheless, we reject defendants' challenge and agree with plaintiff that triable issues of material facts exist as to whether the exceptions to the recreational use immunity provision apply under the circumstances presented in this case.
Although a private landowner generally owes a duty of reasonable care to any person entering his land, section 846 limits the landowner's liability by not imposing upon the landowner a duty of care to persons entering or using the land for a recreational purpose. 34 As used in section 846, "recreational purpose" includes all types of vehicular riding. 35 The statutory immunity applies to an owner of any possessory or non-possessory interest in the land. 36 The immunity, however, does not apply under the following circumstances: ". . . (1) the landowner willfully or maliciously fails to guard or warn against a dangerous condition, use, structure or activity; (2) permission to enter for a recreational purpose is granted for a consideration; or (3) the landowner expressly invites rather than merely permits the user to come upon the premises." 37
In this case, plaintiff claims the statutory immunity does not apply under the first two exceptions. The trial court rejected defendants' assertion of immunity under section 846 because it found a triable issue of material fact as to whether defendants' conduct was willful or malicious in failing to guard or warn against a dangerous condition. Although the court relied solely on the first exception, we will evaluate both in our discussion below.
An owner's conduct is willful or malicious if he had actual or constructive knowledge of the danger and the probable consequences of the danger, but consciously failed to act to avoid such consequences. 38 "`If conduct is sufficiently lacking in consideration for the rights of others, reckless, heedless to an extreme, and indifferent to the consequences it may impose, then, regardless of the actual state of mind of the actor and his actual concern for the rights of others, we call it wilful misconduct, and apply to it the consequences and legal rules which we use in the field of intended torts.' [Citations.]" 39
Malicious conduct may be defined simply as a conscious disregard for the safety of others. 40
Here, plaintiff alleged willful and malicious conduct and presented evidence to support his allegations. As stated earlier, the race director's deposition testimony indicated that defendant had actual knowledge of the danger posed by the intersecting road and that, if a person crossed the race track, injury was probable. Plaintiff also presented evidence that, despite the known danger, defendants failed to provide any warning of the approaching race track.
Defendants nevertheless argue that, based on the protective measures used throughout the race track, their culpability must be limited to ordinary negligence. Defendants' argument relies on a nonexistent premise. In liberally construing plaintiff's evidence, we must assume that defendants failed to provide any warnings at the intersection of the power line road and the race track. Unlike in the cases cited by defendants, where some measures were used to protect the public, in this case, even an uninterested bystander stated that he observed no warnings at the location of the accident. Therefore, at this particular location, where defendants knew that crossing was likely, the evidence indicates that defendants consciously failed to provide warnings. Defendants' conduct, therefore, may amount to more than mere negligence.
We conclude that the trial court properly found a triable issue of material fact as to whether the willful or malicious conduct exception to the recreational use immunity applied under the facts in this case.
We turn now to the second exception. Under section 846, an owner's liability is not limited for injury suffered where permission to enter was granted in exchange for consideration. 41 "The purpose of section 846 is to encourage property owners `to allow the general public to recreate free of charge on privately owned property.' [Citations.]" 42 The statutory immunity, therefore, does not apply when the plaintiff pays consideration, such as an entrance fee. 43 Moreover, there is no requirement that the fee must be paid directly to the owner. For example, a plaintiff, who pays his traveling companion, who in turn pays the owner of the campground, is a person whose permission to enter was granted in exchange for monetary consideration under section 846. 44
It is undisputed that, while plaintiff's uncle, Tom Costa, paid an entry fee, plaintiff personally did not pay to use defendants' property. The issue, however, is whether Costa paid the fee for himself only or for his entire race team. Based on the conflicting evidence presented by both parties, defendants failed to establish that the payment of consideration exception was inapplicable as a matter of law.
While defendants characterized plaintiff's involvement as entering the property to help his uncle, plaintiff stated that he went to the race as a member of his uncle's pit crew. Plaintiff did not register for the race, he did not pay his own entry fee, and his uncle did not pay him for his services. Rather, plaintiff voluntarily assisted his uncle by performing the following duties: refueling the car; checking or changing the tires; checking for leaks and other mechanical problems; and riding his motorcycle to the various checkpoints as directed by his uncle. At minimum, this evidence indicates that plaintiff did not attend the race as a mere spectator.
In her declaration, defendant Patricia Williams made the following statement:
"Fees were charged of every person actually racing in the event. Fees were not charged of the persons who assisted the racers. A racer paid the same fee without regard to the size of his crew, or to whether he had any crew at all."
Despite Williams's unequivocal statement, the promotional literature, the entry form, and other evidence failed to differentiate between the individual driver and the race team. A map advertising the event simply noted a "$360 pro entry fee." Another piece of promotional literature also listed the following: "$360 pro entry fee," "$225 sportsman entry fee," and "no charge to spectators." Defendants' entry form requested information concerning the driver and certain team members. The form also included blanks for particular information, including the "race team name" and the "team radio frequency." Defendants' safety rules also made reference to the "race teams." This evidence therefore shows that defendants anticipated that other team members would participate in the 32-mile race.
Jack Waldron, a BLM employee, commented that drivers "usually have a pit crew." As he pointed at different locations on a map, Waldron explained that drivers would "have a crew here, crew here, crew here, and sometimes they have guys chasing -- they call them chasers."
Based on this evidence, it is unclear whether the $360 entry fee covered simply the driver or the driver's entire race team. The statute does not preclude application of the payment of consideration exception where someone else pays for the plaintiff's entry. If a family goes camping and the parents pay an entrance fee, do the children fall outside of the payment of consideration exception because they personally did not pay for entry? Similarly, if a team captain pays an entrance fee for his team, do the other team members fall outside of the exception because they personally did not pay to use the land? In both of these examples, permission to enter is obtained by the payment of consideration, and thus, the recreational use immunity would not apply.
The recreational use immunity, as stated above, is designed to encourage private property owners to open their land to the public free of charge. 45 In this case, defendants charged each racer $360 for use of the race course. Such compensation brings not only pecuniary benefit, but also certain responsibilities. Such responsibilities include a duty of care toward those who have paid to enter the land.
In this case, triable issues of material fact exist as to whether plaintiff was in fact a member of Costa's race team and whether Costa's payment covered plaintiff's entry and use of the land. Based on these unresolved questions of fact, summary judgment would not have been proper on this ground.
Although we disagree with the court's findings as to the payment of consideration exception, we agree with the trial court that summary judgment was inappropriate on the basis of the recreational use immunity under section 846.
We reverse. Plaintiff shall recover his costs on appeal.
NOT TO BE PUBLISHED
Ramirez, P. J.
1. Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.
2. Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 457, 500.
3. Guz v. Bechtel National, Inc., supra, 24 Cal.4th at page 334.
4. Knight v. Jewett (1992) 3 Cal.4th 296.
5. Knight v. Jewett, supra, 3 Cal.4th at pages 314- 315.
6. Knight v. Jewett, supra, 3 Cal.4th at pages 315, 316- 317.
7. Knight v. Jewett, supra, 3 Cal.4th at page 316.
8. Knight v. Jewett, supra, 3 Cal.4th at page 316; see also Parsons v. Crown Disposal Co., supra, 15 Cal.4th at page 465; Cheong v. Antablin (1997) 16 Cal.4th 1063, 1068.
9. Knight v. Jewett, supra, 3 Cal.4th at pages 317, 318; see also Parsons v. Crown Disposal Co., supra, 15 Cal.4th at page 482.
10. Knight v. Jewett, supra, 3 Cal.4th at page 317.
11. Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1366-1367.
12. Allan v. Snow Summit, Inc., supra, 51 Cal.App.4th at page 1367; Freeman v. Hale (1994) 30 Cal.App.4th 1388, 1394.
13. Branco v. Kearny Moto Park, Inc. (1995) 37 Cal.App.4th 184.
14. Distefano v. Forester (2001) 85 Cal.App.4th 1249.
15. Distefano v. Forester, supra, 85 Cal.App.4th at page 1260.
16. Distefano v. Forester, supra, 85 Cal.App.4th at pages 1261, 1264.
17. Distefano v. Forester, supra, 85 Cal.App.4th at page 1264.
18. Distefano v. Forester, supra, 85 Cal.App.4th at page 1278.
19. Knight v. Jewett, supra, 3 Cal.4th at pages 315- 316.
20. Branco v. Kearny Moto Park, Inc., supra, 37 Cal.App.4th at page 187 (fn. omitted).
21. Branco v. Kearny Moto Park, Inc., supra, 37 Cal.App.4th at page 193 (fn. omitted).
22. Branco v. Kearny Moto Park, Inc., supra, 37 Cal.App.4th at page 193.
23. Branco v. Kearny Moto Park, Inc., supra, 37 Cal.App.4th at page 193.
24. Van Dyke v. S.K.I. Ltd. (1998) 67 Cal.App.4th 1310, 1314- 1318.
25. Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127, 134.
26. Harrold v. Rolling J Ranch (1993) 19 Cal.App.4th 578, 588 (not imposing duty to provide horses that never spook).
27. Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322, 329-330 (assuming secondary assumption of risk does not apply automatically to recreational dancing).
28. Ratcliff v. San Diego Baseball Club (1938) 27 Cal.App.2d 733, 736.
29. Ratcliff v. San Diego Baseball Club, supra, 27 Cal.App.2d at page 736; see also Knight v. Jewett, supra, 3 Cal.4th at page 317.
30. See Van Dyke v. S.K.I. Ltd., supra, 67 Cal.App.4th at page 1317.
31. All further statutory references will be to the Civil Code unless otherwise specified.
32. See Gonzales v. R.J. Novick Constr. Co. (1978) 20 Cal.3d 798, 805- 806, quoting American Enterprise, Inc. v. Van Winkle (1952) 39 Cal.2d 210, 217.
33. See Martinez v. Scott Specialty Gases, Inc. (2000) 83 Cal.App.4th 1236, 1244.
34. Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1099.
35. Section 846; see also Thompson v. United States (9th Cir. 1979) 592 F.2d 1104, 1108.
36. Section 846; see Ornelas v. Randolph, supra, 4 Cal.4th at page 1103; Hubbard v. Brown (1990) 50 Cal.3d 189, 195- 197. For purposes of our analysis, our use of the term "owner" refers to the person who has any possessory or non-possessory interest in the property.
37. Ornelas v. Randolph, supra, 4 Cal.4th at pages 1099- 1100.
38. Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 859; see also Termini v. U. S. (9th Cir. 1992) 963 F.2d 1264, 1267.
39. New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681, 690.
40. New v. Consolidated Rock Products Co., supra, 171 Cal.App.3d at page 691.
41. Section 846; Johnson v. Unocal Corp. (1993) 21 Cal.App.4th 310, 315- 316.
42. Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 707- 708.
43. Moore v. City of Torrance (1979) 101 Cal.App.3d 66, 72, disapproved on other grounds in Delta Farms Reclamation Dist. v. Superior Court, supra, 33 Cal.3d at pages 707, 710; see also Mansion v. U.S. (9th Cir. 1991) 945 F.2d 1115, 1118; Thompson v. United States, supra, 592 F.2d at page 1108.
44. See Graves v. United States Coast Guard (9th Cir. 1982) 692 F.2d 71, 73.
45. Delta Farms Reclamation Dist. v. Superior Court, supra, 33 Cal.3d at pages 707- 708.