Garcia v. American Golf Corp.

Filed 5/3/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

JACOBO G. GARCIA, a Minor, etc., B267613

et al.,

(Los Angeles County

Plaintiffs and Appellants, Super. Ct. No. GC050056)

v.

AMERICAN GOLF CORPORATION

et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of

Los Angeles County. Howard L. Halm, Judge. Reversed.

Robert D. Feighner; Law Offices of Edward J. Deason, and

Edward J. Deason, for Plaintiffs and Appellants.

Michele Beal Bagneris, City Attorney, Ann Sherwood

Rider, Assistant City Attorney; Law Offices of Michael R.

Nebenzahl, Michael R. Nebenzahl; Carpenter, Rothans &

Dumont, and Justin Reade Sarno, for Defendant and Respondent

City of Pasadena.

Daley & Heft and Lee H. Roistacher for League of

California Cities and California State Association of Counties as

Amici Curiae on behalf of Defendant and Respondent City of

Pasadena.

_________________________

In this opinion, we hold that the trail immunity in

Government Code section 831.41 does not immunize a dangerous

condition of a commercially operated, revenue generating public

golf course that causes injury to pedestrians on an adjacent trail.

Consequently, we reverse the summary judgment entered in

favor of City of Pasadena (City) on the claims by Jacobo G. Garcia

(Jacobo) and his mother, Ana Pavon (Pavon), (collectively

appellants) that they were injured by a dangerous condition of

City owned property known as the Brookside Golf Course when

Jacobo was hit by an errant golf ball on a walkway City contends

is a trail.2

1 All further statutory references are to the Government

Code unless otherwise specified.

2 Below, the parties disputed whether the walkway at issue

is a trail under section 831.4. We need not decide that issue.

Even if the walkway qualifies as a trail, City is not entitled to

trail immunity. For purposes of this opinion, we presume

without deciding that the walkway is a trail.

2

FACTS

The Brookside Golf Course is owned by City and managed

and operated by American Golf Corporation (American Golf)

pursuant to a lease agreement. Within the Brookside Golf

Course there are two 18-hole golf courses, the E.O. Nay Course

and the C.W. Koiner Course.

The Rose Bowl Loop (Loop) is comprised of roadways

(including West Drive) that encircle the Rose Bowl Stadium and

the Brookside Golf Course. These roads provide access to

recreational areas within the Central Arroyo Park and Brookside

Park, including the golf course, stadium, a children’s museum,

tennis courts, aquatics center, baseball and soccer fields,

equestrian facilities and open park space. People use the Loop

for walking, jogging, skating and bicycling.

In 2001, after a person was hit by a golf ball outside the

Brookside Golf Course, City erected safety nets at the 12th, 17th

and 18th holes of the C.W. Koiner Course.

There is a 13-foot wide pedestrian walkway (walkway)

along the Loop. To distinguish it from the black asphalt

roadway, the walkway is light brown in color. Also, it is

separated from the roadway by a 12-inch wide white painted line

as well as flexible delineators that City placed on the white line

at 100 foot intervals. The Brookside Golf Course is separated

from the walkway by a concrete wall topped by a chain link fence.

There are various chain link gates in the fence that give motor

vehicles access to the golf course for use as a parking lot during

major events at the Rose Bowl. Both the fence and gates are

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approximately seven feet six inches high.3 Inside the Brookside

Golf Course, posted on the fence surrounding it, there are

warning signs that read: “NOTICE [¶] YOU ARE WITHIN A

GOLF COURSE AREA. [¶] YOU ASSUME THE RISK OF

GOLF BALLS AND OTHER RECREATIONAL USERS.”

On September 30, 2011, Jacobo was hit in the head by an

errant golf ball while Pavon was pushing him in a stroller on the

walkway. They were traveling along West Drive and near the

first post of the gate for Lot 6, which is adjacent to the 15th hole

of the C.W. Koiner Course.

Appellants filed a government claim on February 22, 2012,

which alleged: “Claimant [Jacobo] was struck in the head by a

golf ball. He was transported by ambulance to Huntington

Memorial Hospital and transferred to Children’s Hospital where

he was diagnosed with a brain injury, including a subdural

hematoma. He experienced significant pain, cognitive

difficulties, urinary dysfunction, eye injuries, and emotional

distress. Claimant [Pavon] suffered emotional distress and the

consequences of caring for [Jacobo].” Regarding the acts or

omissions of City, appellants averred: “Failure of the public

entity to protect against a dangerous condition on public property

pursuant to [sections] 830 and 835. The public entity permitted a

dangerous activity of a golf course next to a public

sidewalk/walking and biking area; failed to protect against the

known risk of golf balls leaving the golf course and striking

persons on public property, but not on the golf course; failed to

3 Appellants maintain that although “the fence measures 7

feet, 6 inches above the sidewalk,” it is “only 6 feet, 6 inches from

the golf course elevation.”

4

erect fences or other barriers to protect the public or arrange the

golf course to minimize this risk or adequately warn golfers and

pedestrians of this risk.”

Appellants sued American Golf for negligence and City for

dangerous condition of public property.

City filed a motion for summary judgment and argued

there was no dangerous condition of the walkway, City did not

have actual or constructive notice of a dangerous condition of the

walkway, and City was entitled to immunity under sections

831.4, 830.6, 820.8, 820.2 and 835.4. Also, City argued that it

could not be liable because warning signs were posted, and Pavon

assumed the risk because she was aware of, or should have been

aware of, the danger of errant golf balls.

In opposition, appellants argued that none of City’s

statutory defenses had merit in large part because a dangerous

condition of the walkway was not at issue. Rather, the issue was

a dangerous condition of the Brookside Golf Course, i.e., the

fairways were too narrow and had too few trees, and the fences

were too low. As for the warning signs, appellants argued, inter

alia, that there was no evidence City erected them, and they did

not provide a reasonable warning to pedestrians outside the golf

course of the hazard posed by errant golf balls.

In support of their argument regarding the signs,

appellants pointed out that Bahman Janka (Janka), City’s project

director for the walkway as well as transportation administrator

of its Department of Transportation, testified during deposition

that he does not know who installed the signs, when they were

installed or who maintains them. In addition, Janka testified he

does not know who owns the signs or fence around the Brookside

Golf Course. David Sams (Sams), City’s person most

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knowledgeable concerning the management of the Brookside Golf

Course and administration of the lease with American Golf

testified during deposition that he does not know who erected the

signs, when they were erected, or who owns the signs. Kyle A.

Mitchell (Mitchell), the general manager of the Brookside Golf

Course, testified during deposition that he is not aware of any

signs warning pedestrians of golf balls. Appellants’ civil

engineering expert, Brad P. Avrit (Avrit), provided a declaration

stating: “[T]he warning signs posted on the fence separating the

golf course and the public walkway were not fully visible for an

approaching pedestrian exercising reasonable care. . . .

Furthermore, even if a pedestrian does read the warning signs, it

is impossible to anticipate when and where a golf ball will come

flying over the fence. . . . In addition, the warning on these signs

[does] not tell a pedestrian what to do to protect themselves from

a small, hard golf ball flying over the fence of the golf course.

Thus, it is my opinion that the warnings signs posted every few

hundred feet are not positioned to provide adequate warning, and

thus do not adequately protect or warn pedestrians” who are

using the walkway.

With respect to the design of the Brookside Golf Course,

appellants submitted the expert declaration of Michael J.

Hurdzan. He declared: The area where Jacobo was hit “is

inherently unsafe for cars and pedestrians on or along West

Drive because of errant golf balls entering that area.” City knew

or should have known that there “would be a reasonably high

likelihood of golf balls landing in that vicinity. Protection of

pedestrians using the [Loop] could have easily been accomplished

by good design or remedial measures.” “[G]olf course operators

should be vigilant to observe any place on or near their golf

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course where errant golf balls could hit unsuspecting people or

property. This is especially true on a highly traveled area such

as the [Loop] where the golf holes and probable play areas are so

close together. At the 15th hole, the only barrier between the golf

fairway and West Drive is a [six foot, eight inch] fence and some

small and somewhat thin foliage trees that are more of a visual

barrier than an effective ball stopping barrier. . . . The trees are

not dense enough to stop golf balls, but being a visual barrier,

actually contribute to [a problem] because golfers cannot see

pedestrians to warn them, nor can pedestrians see all of the

golfers or golf balls that could cause them harm. The trees are

not effectual safeguards. The fence is too low to provide adequate

protection.”

In further support of their dangerous condition argument,

appellants submitted the deposition of Sams in which he testified

that he had personally hit golf balls over the fence near the

Brookside Golf Course. He had seen about five people hit golf

balls over the fence of the 15th hole of the C.W. Koiner Course.

This occurred with either a tee shot or a second shot.

The trial court granted City’s motion. In its written ruling,

the trial court concluded that City was entitled to trail immunity.

As a result, the trial court declined to reach City’s other

immunity defenses.4

4 The trial court provided an advisory ruling on the following

question: “despite the Trail Immunity, can City be liable for the

dangerous condition of the Golf Course because City owns the

Golf Course?” The trial court found triable issues as to whether

there was a dangerous condition, whether City had actual notice

of the dangerous condition, and whether City took sufficient

action to protect against the risk of injury by posting warning

signs.

7

A judgment of dismissal was entered.

This timely appeal followed.

DISCUSSION

I. Standard of Review.

“An order granting summary judgment is subject to de novo

review. [Citation.]” (Moreno v. Quemuel (2013) 219 Cal.App.4th

914, 917–918.) Like the trial court, we employ a three-step

analysis: “‘First, we identify the issues framed by the pleadings.

Next, we determine whether the moving party has established

facts justifying judgment in its favor. Finally, if the moving party

has carried its initial burden, we decide whether the opposing

party has demonstrated the existence of a triable, material fact

issue. [Citation.]’ [Citation.]” (Supervalu, Inc. v. Wexford

Underwriting Managers, Inc. (2009) 175 Cal.App.4th 64, 71.)

II. Dangerous Condition of Public Property.

A dangerous condition of public property “means 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.” (§ 830,

subd. (a).) “Except as provided by statute, a public entity is liable

for injury caused by a dangerous condition of its property if the

plaintiff establishes that the property was in a dangerous

condition at the time of the injury, that the injury was

proximately caused by the dangerous condition, that the

dangerous condition created a reasonably foreseeable risk of the

kind of injury which was incurred, and that either: [¶] (a) A

negligent or wrongful act or omission of an employee of the public

entity within the scope of his employment created the dangerous

condition; or [¶] (b) The public entity had actual or constructive

8

notice of the dangerous condition under Section 835.2 a sufficient

time prior to the injury to have taken measures to protect against

the dangerous condition.” (§ 835.)

As explained by our Supreme Court, the following are “well

established: first, that the location of public property, by virtue

of which users are subjected to hazards on adjacent property,

may constitute a ‘dangerous condition’ under [Government Code]

sections 830 and 835; second, that a physical condition of the

public property that increases the risk of injury from third party

conduct may be a ‘dangerous condition’ under the statutes.”

(Bonanno v. Central Contra Costa Transit Authority (2003) 30

Cal.4th 139, 154 (Bonanno).)

III. Trail Immunity.

Neither a public entity nor a grantor of a public easement

to a public entity is liable for injury caused by, inter alia, a

condition of: “(a) Any unpaved road which provides access to

fishing, hunting, camping, hiking, riding, including animal and

all types of vehicular riding, water sports, recreational or scenic

areas and which is not a (1) city street or highway or (2) county,

state or federal highway or (3) public street or highway of a joint

highway district, boulevard district, bridge and highway district

or similar district formed for the improvement or building of

public streets or highways. [¶] (b) Any trail used for the above

purposes.” (§ 831.4.)

Whether property qualifies for immunity “depends on a

number of considerations, including accepted definitions of [the

word trail] [citations], the purpose for which the property is

designed and used, and the purpose of the immunity statute

[citation].” (Amberger-Warren v. City of Piedmont (2006) 143

Cal.App.4th 1074, 1078–1079 (Amberger-Warren).)

9

In Amberger-Warren, the plaintiff, her friend and their two

dogs were in a fenced-in, off-leash lower loop section of a dog park

owned by a public entity. The lower loop was a paved pathway

across a hill, which was described as a dirt embankment. When

the plaintiff went up the pathway to put a leash on her dog, she

was bumped by either her dog or her friend’s dog and slipped on

some debris on the pathway. She fell backward, landing partway

off the pathway. To avoid tumbling down the hill, she grabbed an

exposed cement edge and injured her hand. (Amberger-Warren,

supra, 143 Cal.App.4th at pp. 1077–1078.)

The court concluded as a matter of law that the pathway

was a trail under section 831.4. (Amberger-Warren, supra, 143

Cal.App.4th at p. 1078.) After reaching that conclusion, the court

moved on to the next issue, which was whether the injury was

caused by a condition of the trail. (Id. at p. 1083.)

The plaintiff argued that her injury was caused by

dangerous conditions unrelated to the trail, “including: allowing

dogs to run unleashed in the park; permitting debris to

accumulate on the trail; failing to install a guardrail where the

accident occurred; and locating the trail in a dangerous area, i.e.,

next to a slope onto which people could fall.” (Amberger-Warren,

supra, 143 Cal.App.4th at p. 1083.)

The court noted that the public entity was not liable for

harm caused by third party actors “such as plaintiff’s own

unleashed dog unless some unimmunized conduct on its part

contributed to that harm.” (Amberger-Warren, supra, 143

Cal.App.4th at p. 1084.) As a result, the plaintiff’s case had to

hinge on the other conditions she identified. But the trail

immunity covered debris on the pathway. Moreover, trail

immunity applied to the design of the trail, which included the

10

absence of a guardrail. Finally, the court concluded that the hill

was “not unrelated to the trail because the trail is what provides

access to the hill and exposure to the alleged danger.” (Id. at

p. 1085.) The court reasoned that “location, no less than design,

is an integral feature of a trail, and both must be immunized for

the same reasons. To accept plaintiff’s argument would be to

require installation of handrails or other safety devices on trails,

or relocation of trails, whenever the surroundings could otherwise

be considered unreasonably dangerous. The likely and

unacceptable result, which the immunity was created to avoid,

would be the closure of many trails in areas that could be deemed

at all hazardous.” (Ibid.)

In our view, the court did not hold that there must be

immunity for every injury occurring on a trail when an adjacent

public property was a contributing factor. Rather, the court

examined the causation question in light of the policy of section

831.4. It identified the issue as whether a trail and an adjacent

public property meet a relatedness test. That test has two parts:

proximity and liability that will likely cause the trail to close.

Thus, the Amberger-Warren court embraced a nuanced, policy

based relatedness test for determining whether an injury is

caused by a condition of a trail when an adjacent public property

may have contributed to the injury.

Subsequently, the court in Prokop v. City of Los Angeles

(2007) 150 Cal.App.4th 1332 (Prokop) held that a city had

“absolute immunity under [section 831.4] from liability for

injuries by a bicyclist who collided with a chain link fence

immediately after exiting a class I bikeway located” along a river.

(Prokop, supra, at p. 1335.) The court noted that precedent

established that “a paved class I bikeway is a ‘trail’ within the

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meaning of section 831.4[.]” (Id. at p. 1338.) It rejected the

argument that immunity did not apply because the accident

occurred outside the confines of the bikeway. Citing Amberger-

Warren, the Prokop court stated, “A gateway to or from a bike

path is patently an integral part of the bike path. [Citation.]”

(Id. at p. 1342.) Because Prokop determined the gate was part of

the trail at issue, the bike path, it did not have to decide whether

an adjacent public property had caused injury.

Most recently, Leyva v. Crocket & Co., Inc. (2017) 7

Cal.App.5th 1105 (Leyva) was decided. In that case, the private

owner of a golf course granted the City of San Diego two public

easements for an unpaved recreational hiking and equestrian

trail running parallel to the golf course. The owner was sued

when a person using the trail was hit by a golf ball. (Id. at

p. 1111.)

Even if the trail came within section 831.4, the injured

plaintiff in Leyva, Miguel Leyva, and his wife argued that “the

trail’s location next to the golf course ‘has nothing to do with the

fact that [the victim] was injured by a golf ball from the

[adjacent] property,’ and the golf course’s lack of safety barriers

on the 13th hole is not a faulty design or condition of the trail.”

(Leyva, supra, 7 Cal.App.5th at p. 1110.)

The court rejected this argument, citing to Amberger-

Warren and Prokop. It stated, “Here, the Leyvas are incorrect to

argue the location of the trail next to the golf course is unrelated

to [Miguel Leyva’s] injuries: [He] would not have been struck by

the golf ball if he had not been walking on a trail located next to

the golf course. Just as the trail’s location next to a hill in

[Amberger-Warren] is an integral feature of the trail, so is the

trail’s location next to the golf course. Further, it makes no

12

difference whether the alleged negligence in failing to erect safety

barriers along the boundary between the golf course and the trail

occurred on the golf course or on the trail itself because the effect

is the same. [¶] Additionally, the erection of a safety barrier on

the boundary of the golf course is equivalent to the installation of

a handrail in Amberger-Warren. In that case, the court observed,

“‘[w]e presume that there are many miles of public trails on

slopes in this state that could be made safer with handrails, and

that handrails would perhaps enhance the safety of all trails,

wherever located, that bear pedestrian traffic. But to require

installation of handrails along every public trail where it might

be reasonably prudent to do so would greatly undermine the

immunity’s objective of encouraging access to recreational

areas . . . .’ [Citation.] Similarly, public pathways along golf

courses certainly could be made safer by cordoning off or erecting

high barriers between the golf courses and trails. However,

setting aside how the aesthetics of such barriers could mar the

recreational experience for trail users, the burden and expense of

erecting barriers to make recreational trails entirely safe from

errant golf balls would chill private landowners . . . from granting

public easements to public entities along golf courses, resulting in

closure of such areas to public use. [Citation.]” (Leyva, supra, 7

Cal.App.5th at pp. 1110–1111.)

This triad of cases—Amberger-Warren, Prokop and Leyva—

are at the heart of whether City is entitled to trail immunity.

IV. City Cannot Claim Trail Immunity.

Presuming for the sake of argument that the walkway is a

trail for purposes of section 831.4, the crux of this case is whether

the injury to Jacobo was caused by a dangerous condition of the

13

walkway for purposes of trail immunity. To determine this issue,

we must interpret section 831.4.

When engaging in statutory interpretation, our goal is to

ascertain the intent of the Legislature. “If the language is clear

and unambiguous, the court presumes that the Legislature

meant what it said and the inquiry ends. But if the statute is

ambiguous, i.e., it is susceptible to more than one reasonable

interpretation, the court may use a variety of extrinsic aids. For

example, it may consider the ostensible objects to be achieved,

the evils to be remedied, the legislative history, public policy,

contemporaneous administrative construction, and the statutory

scheme of which the statute is a part. In addition, the court may

consider the consequences that will flow from a particular

interpretation. [Citations.]” (Jewish Community Centers

Development Corp. v. County of Los Angeles (2016) 243

Cal.App.4th 700, 708.) A court “construing an ambiguous statute

must avoid, if it can, an interpretation that would lead to absurd

consequences. [Citation.]” (Id. at p. 712.)

The plain language of section 831.4 provides immunity for

injuries caused by dangerous conditions of trails, but it does not

provide immunity for injuries caused by dangerous conditions of

adjacent public properties. We perceive no ambiguity in section

831.4 on this point. But, as recognized in Bonanno, the location

of public property can be a dangerous condition, and so too can

the physical condition of a public property that increases the risk

of injury from third party conduct. When, if ever, must a

dangerous condition of an adjacent public property that increases

the risk of injury from third party conduct be considered a

dangerous condition of a trail such that the shield of section 831.4

will cover the adjacent public property? The statute does not

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specify, leaving us with an ambiguity. Amberger-Warren resolves

the ambiguity with the relatedness test. In other words, unless

properties are deemed related for policy reasons, courts will not

immunize adjacent public properties.

The Brookside Golf Course does not pass the relatedness

test. As we explain below, Amberger-Wilson, Prokop and Leyva

are not analogous.

The trail in Amberger-Warren was next to a hill described

as a dirt embankment, which posed a danger of people falling.

The presence or absence of guardrails would not have been an

issue but for the trail. It is true that the plaintiff’s fear of

tumbling down the hill was a causal factor in her hand injury,

but it is also true that she would not have injured her hand

without being bumped by an unleashed dog, slipping on debris,

falling backwards and grabbing an exposed cement edge of the

trail, and if the trail had guardrails. In other words, the

unleashed dog as well as conditions of the trail other than its

location were substantial factors in the injury. Moreover, the

trail was the very thing that provided the public access to the

hill. Beyond that, neither the trail nor hill were commercial

enterprises that earned profits that could be used for

maintenance, safety features, and insurance, and for paying

lawyers and judgments. Thus, imposing liability would have

given public entities the choice of either paying for guardrails on

trails next to hills or closing such trails. Due to the expense, it

was likely the trails would be closed and the public would be

deprived of the use and enjoyment of trails and related parks.

For policy reasons, the trail and its location next to the hill could

not be separated with respect to analyzing trail immunity.

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In contrast, policy dictates that the walkway and the

Brookside Golf Course be given separate immunity analysis, at

least with respect to a danger posed by third party conduct on the

golf course.

The Brookside Golf Course is a developed and commercially

operated golf course that introduced the danger of people using

the Loop getting hit by errant golf balls. In other words, there is

a risk of harm posed by third parties, i.e., golfers. This danger is

the result of a human creation in contrast to the naturally

occurring danger posed by the hill in Amberger-Warren due to

topography and gravity. It is common knowledge that when golf

courses are in areas where errant golf balls could cause injury

outside of the courses in spaces frequented by people and

vehicles, they are designed to protect against such injury. And

the fact that the Brookside Golf Course has a fence and

strategically placed trees leads to the reasonably deducible

inference that—whether successful or not—it was designed to

protect people outside the course from errant golf balls hit by

golfers. This clearly indicates that the designer and City were

aware of the potential harm that errant golf balls might cause

absent safety precautions. The danger of errant golf balls (and

need for safety) exists for people outside the Brookside Golf

Course regardless of whether they use the walkway. As a

commercial enterprise that generates revenue, the Brookside Golf

Course can pay for safety features such as the safety nets that it

erected in 2001 after a pedestrian was hit by an errant golf ball.

It can obtain insurance, and it can pay lawyers and judgments.

In addition, it is the Loop, of which the walkway is only a

small part, that provides access to the golf course. If the

walkway was eliminated—if the area it occupies was merged into

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part of the street or turned into a sidewalk—the Loop would still

provide access to the golf course.

Though the trail and Brookside Golf Course have close

proximity, it is not likely that liability will cause City to close the

trail given that the golf course generates revenues that can pay

for maintenance and judgments. It is fair to deny the City trail

immunity for a dangerous condition of the Brookside Golf Course

that increases the risk of harm by third party conduct. Rather

than prompting the closure of trails that abut public streets and

are adjacent to publicly owned golf courses, liability will prompt

such golf courses to take corrective action in a manner consistent

with the accepted and expected methods of managing golf

courses.

A bulwark to our conclusion is that recognizing immunity

here would give City a disincentive to correct a dangerous

condition of the Brookside Golf Course even if the course is

revenue generating. And if the Brookside Golf Course has a

dangerous condition, recognizing immunity would have the

absurd consequence of requiring City to protect people using the

Loop from getting hit by an errant golf ball except anyone who

happens to be using the walkway.

Stripped down to its essence, we determine the following.

The Amberger-Warren court was confronted with a case that

involved dual dangerous conditions—the location of the trail and

the slope of the hill—and decided the dangerous conditions

should be deemed related. This served pragmatism because the

trail and hill were part of the same park and presumably under

the same management, and the fate of the trail and access to the

hill were tied together because making them safer would involve

changing the design of the trail by installing guardrails. The

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walkway and the Brookside Golf Course also, arguably, have dual

dangerous conditions—location of the walkway and insufficient

fences and/or trees to block errant golf balls. But the walkway

and the golf course are separable by different uses as well by the

golf course’s revenues. If City is held liable, it will be prompted

to correct the design of the golf course rather than the design of

the trail. Thus, these two arguable dangerous conditions are not

related, and immunity for one should not be immunity for both.

Though City urges us to conclude that Prokop dictates a

decision in its favor, we disagree. The gate in Prokop did not

exist without the bikeway because they were both part of the

design of the bikeway beyond mere location. And, the gate was

not a separate, commercially operated property that could finance

safety measures. Accordingly, there is no analogy between the

facts and policies in Prokop and those here.

This brings us to Leyva. It provides no assistance to City

because it involved materially different facts. The condition of

the golf course could not be dangerous but for the trails. As we

have indicated, the danger posed by the Brookside Golf Course

would exist even if the walkway did not; there would still be a

danger of errant golf balls hitting motorists and recreational

users of the Rose Bowl Loop. Also, here, the Brookside Golf

Course has fences and trees designed for protection of Rose Bowl

Loop users, and the issue is the adequacy of those measures as

opposed to their absence. Also, the Leyva court was concerned

that liability in that case would discourage private landowners

from granting easements for public use. That, of course, is not a

concern in this case.

Based on all these considerations, a public golf course

cannot assert a trail immunity defense when: (1) the golf course

18

is adjacent to a trail abutting a public street; (2) the golf course is

a commercially operated, revenue-generating enterprise; (3) the

golf course has a dangerous condition that exposes people outside

it to a risk of harm from third parties hitting errant golf balls;

and (4) the dangerous condition of the golf course caused harm to

a user of the trail.

To be complete, we acknowledge that City would have us

affirm based on the holdings of Burgueno v. Regents of University

of California (2015 ) 243 Cal.App.4th 1052, 1061 (Burgueno) and

Hartt v. County of Los Angeles (2011) 197 Cal.App.4th 1391

(Hartt). But neither case is on point. Burgueno involved a fatal

collision on the Great Meadow Bikeway, which is on the campus

of the University of California, Santa Cruz. The plaintiffs argued

that the Great Meadow Bikeway was not a trail under section

831.4 because it had a dual use, one being transportation and the

other being recreation. The court held: “Since the Great Meadow

Bikeway has mixed uses that undisputedly include recreation,

the Regents have trail immunity under section 831.4, subdivision

(b) from claims, such as plaintiffs’ claims, that arise from the

condition of the Great Meadow Bikeway.” (Burgueno, supra, at

p. 1061.) The court relied, in part, on Hartt, which held that the

mixed use of a path by service vehicles and recreational cycling

did not defeat trail immunity. (Hartt, supra, at p. 1400.) These

cases pertain to whether a particular path qualifies as a trail for

purposes of trail immunity. Neither case analyzes a causation

issue similar to the one herein.

V. City’s Warning Sign and Assumption of Risk Defenses.

City contends that it is entitled to summary judgment

because there were warning signs on the Brookside Golf Course

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fence, and because appellants assumed the risk of injury caused

by errant golf balls.

A “public entity is not liable for injuries proximately caused

by the dangerous condition if it renders an adequate warning.”

(Foremost Dairies, Inc. v. State of California (1986) 190

Cal.App.3d 361, 367.) “Whether [a] warning was adequate is

ordinarily a question of fact, but it may ‘be resolved as a question

of law if reasonable minds can come to but one conclusion.

[Citations.]’” (Ibid.)

The initial flaw in City’s warning sign defense is that there

is no evidence that it installed, owns or maintains the signs. City

does not argue that we should infer that it installed, owns and

maintains the signs, and it cited no law establishing that it is

entitled to a defense based on warning signs erected by a third

party. Ultimately, these issues are moot for our purposes

because reasonable minds can differ regarding the adequacy of

the warning signs, which is illustrated by Avrit’s expert opinion

that the warning signs were not adequate due to their placement

as well as their verbiage. Thus, the adequacy of the signs must

be decided by a trier of fact.

This brings us to assumption of risk.

“The doctrine of primary assumption of risk is applied to

certain sports or sports-related recreational activities where

‘conditions or conduct that otherwise might be viewed as

dangerous often are an integral part of the sport itself’ and their

removal would alter the nature of the sport. [Citation.]” (Childs

v. County of Santa Barbara (2004) 115 Cal.App.4th 64, 69–70.)

Secondary assumption of risk arises where “the defendant owes a

duty to a plaintiff who is careless in encountering a known risk

created by the defendant’s breach of its duty. [Citation.]

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Primary assumption of risk is a complete bar to recovery.

Secondary assumption of risk ‘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.’ [Citation.]” (Id. at p. 69.)

City argues we should affirm based on Shin v. Ahn (2007)

42 Cal.4th 482 (Shin), a case in which our Supreme Court held

that the primary assumption of risk doctrine barred a golfer from

suing a coparticipant after being struck by a golf ball. (Id. at

p. 486.) Shin is inapposite because Jacobo and Pavon were not

participants in the sport of golf at the time of the accident.

Next, City asks us to follow the reasoning of McGuire v.

New Orleans City Park Improvement Association (2003) 835 So.2d

416 (McGuire). There, the court relied on Louisiana’s duty-risk

analysis to bar suit after a jogger was hit by a golf ball while

jogging on the roadway in a park with a golf course. Because

McGuire does not apply California’s primary assumption of risk

doctrine, it is not persuasive, and we decline to factor it into our

analysis. It bears mentioning, however, that the McGuire court

reached its conclusion because the plaintiff knowingly

encountered the risk. Here, if appellants were aware of the risk

and were careless in encountering it, that would only establish

secondary assumption of the risk. Accordingly, summary

judgment would not be appropriate because there would still be

an issue of fact, i.e., apportionment of fault under comparative

fault principles.

VI. Other Immunity Issues.

City requests that we affirm summary judgment based on

the immunities afforded by sections 830.6, 820.2 and 815.2,

subdivision (b). We decline.

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“Neither a public entity nor a public employee is liable

. . . for an injury caused by the plan or design of a construction of,

or an improvement to, public property where such plan or design

has been approved in advance of the construction or improvement

by the legislative body of the public entity or by some other body

or employee exercising discretionary authority to give such

approval or where such plan or design is prepared in conformity

with standards previously so approved, if the trial or appellate

court determines that there is any substantial evidence upon the

basis of which (a) a reasonable public employee could have

adopted the plan or design or the standards therefor or (b) a

reasonable legislative body or other body or employee could have

approved the plan or design or the standards therefor.” (§ 830.6.)

“A public entity claiming design immunity must show the

existence of three elements, ‘“(1) [a] causal relationship between

the plan and the accident; (2) discretionary approval of the plan

prior to construction; [and] (3) substantial evidence supporting

the reasonableness of the design.”’ [Citations.]” (Grenier v. City

of Irwindale (1997) 57 Cal.App.4th 931, 939.)

City argues that there is a causal relationship between the

plan or design of the Loop and the accident; the design for the

Loop was approved by City or a City employee exercising

discretionary authority in advance of construction; and there is

substantial evidence that a reasonable public entity or employee

could have approved the design. But as we have indicated in

connection with our trail immunity discussion, a dangerous

condition of the walkway’s location cannot be conflated with a

dangerous condition of the Brookside Golf Course’s lack of fences

and/or trees, and any contribution of the walkway’s location to

appellants’ injuries cannot exonerate City from liability with

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respect to a dangerous condition of the Brookside Golf Course.

The same reasoning applies to design immunity. In other words,

even if City could establish design immunity for the walkway,

that would not foreclose liability for injury caused by a dangerous

condition of the Brookside Golf Course. Once again, our

reasoning is informed by policy. A commercially operated and

revenue-generating golf course should not be absolved of liability

if it would not otherwise qualify for design immunity on its own

merit simply because a dangerous condition of that golf course

happens to cause harm on an adjacent trail. For a commercially

operated and revenue-generating golf course to use the shield of

design immunity, it must prove discretionary approval of its plan

(versus the plan of an adjacent trail) prior to construction, and

substantial evidence supporting the reasonableness of its design

(versus the design of an adjacent trail). For these reasons, City’s

arguments about the Loop are moot.

Section 820.2 provides that except as otherwise provided by

statute, “a public employee is not liable for an injury resulting

from his act or omission where the act or omission was the result

of the exercise of the discretion vested in him, whether or not

such discretion be abused.” Pursuant to section 815.2,

subdivision (b), and except as otherwise provided by statute, a

public entity cannot be held liable for an injury resulting from an

act or omission of an employee of the public entity where the

employee is immune from liability.

City argues that it is entitled to immunity under these

statutes for the discretionary design of the Loop and nearby

recreational areas. But appellants are suing based on a

dangerous condition of the Brookside Golf Course rather than an

injury resulting from an act or omission of a City employee, and

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City has not explained how or why section 815.2, subdivision (b)

and section 820.2 would operate to immunize City from the

liability permitted by section 830.6. We note that the recognized

method for a public entity to avoid liability for a dangerous

condition of public property is through the affirmative defense of

design immunity. (Hampton v. County of San Diego (2015) 62

Cal.4th 340, 342–343.) As explained above, City failed to

establish that design immunity entitled it to summary judgment.

DISPOSITION

The judgment is reversed.

Appellants shall recover their costs on appeal.

CERTIFIED FOR PUBLICATION.

______________________, Acting P. J.

ASHMANN-GERST

We concur:

______________________, J.

CHAVEZ

______________________, J.*

GOODMAN

*

Retired Judge of the Los Angeles Superior Court, assigned

by the Chief Justice pursuant to article VI, section 6 of the

California Constitution.

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