Filed 11/20/15

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

COUNTY OF SAN DIEGO,

Petitioner,

v.

THE SUPERIOR COURT OF

SAN DIEGO COUNTY,

Respondent;

D068016

(Super. Ct. No. 37-2014-00001577-CUPO-CTL)

BEN CASTEEN,

Real Party in Interest.

PETITION for a writ of mandate challenging an order of the Superior Court of 

San Diego County, Joel R. Wohlfeil, Judge. Petition granted.

Thomas E. Montgomery, County Counsel, and David L. Brodie, Deputy County 

Counsel, for Petitioner.

No appearance for Respondent.

Law Offices of Martin N. Buchanan and Martin N. Buchanan; Ward & Hagen,

Peter C. Ward and Ralph W. Peters, for Real Party in Interest.
2

Government Code section 831.7 provides that, unless a specified exception applies, 

public entities are immune from liability to persons who suffer injury while engaging in 

"hazardous recreational activities." (Undesignated statutory references are to the 

Government Code.) In this case, we conclude the trial court improperly denied a public 

entity's summary judgment motion because the undisputed material facts show the public 

entity was immune from liability under section 831.7 for injuries suffered by the plaintiff 

while tree rope swinging and none of the exceptions in section 831.7 applied.

FACTUAL AND PROCEDURAL BACKGROUND

The Accident

Damon Lane County Park in El Cajon (the park) is a 29-acre open space park with 

trails for hiking, walking and equestrian use. The park has information kiosks, but does 

not have any structures such as restrooms or a parking lot. The park is owned and 

controlled by the County of San Diego (the County). The County has a maintenance 

crew who services the park daily to collect trash and, as needed, clear the trails and cut 

weeds. Another crew trims trees and cuts up downed trees. Trees posing a falling hazard 

to trail users are removed, but trees that have fallen off a trail are often left to support the 

natural habitat. Sometimes a crew will remove parts of trees blocking a trail and leave 

the rest of the tree, including the stump, so long as it poses no threat to trail users. Off 

trail areas may include tree stumps or parts of fallen trees or trees that have been cut 

down.

Benjamin Casteen has been rope swinging at the park since he was 12 years old. 

On a day in 2012, Casteen, a high school student, used a rope swing tied to a tree at the 
3

park. The tree was located above a ravine. The rope broke, causing Casteen to fall into 

the ravine and onto debris located in the ravine. The debris in the ravine included cut 

down tree limbs and other brush left by the County's maintenance crews. Casteen 

suffered injuries to his head and face. Although Casteen does not remember the incident, 

his custom and practice before using a tree rope swing was to visually check the rope and 

branch it was hanging from, give the rope a big tug or yank to check for strength and then 

take a tentative short swing on the rope.

The County had no policy requiring maintenance personnel to remove rope swings

in the park. There are no signs posted in the park forbidding tree rope swinging and park 

personnel doing maintenance never told Casteen to stop tree rope swinging or remove the 

rope. A civil engineer who inspected the broken rope opined that the rope had been in 

the sun for over three months and that the rope broke as a result of ultraviolet-based 

breakdown of its material.

The Legal Proceedings

Casteen sued the County, asserting three causes of action: (1) dangerous condition 

of public property under section 835 arising from the County's actual and constructive 

notice of the defective condition of the rope swing, failure to properly maintain the rope 

swing, failure to protect against the dangerous condition and failure to provide a warning; 

(2) dangerous condition of public property under section 835 arising from tree debris left 

in the ravine by the County's personnel; and (3) general negligence, including failing to 

remove the rope swing. The County answered the complaint, asserting numerous 

affirmative defenses, including immunity under section 831.7.
4

The County moved for summary judgment on the ground the park was not in a 

dangerous condition and it was immune for injuries resulting from tree rope swinging, a 

hazardous recreational activity. It also argued that the exception to liability under section 

831.7, subdivision (c)(1)(A) for failure to guard or warn of a known dangerous condition 

did not apply because the debris in the ravine did not constitute an additional dangerous 

condition. 

Casteen opposed the motion arguing the County failed to discuss applicable 

exceptions to the immunity for hazardous recreational activities, each exception involved 

disputed factual issues, and thus the County failed to meet its burden of showing a 

complete defense under section 831.7. Specifically, he argued the County was not 

immune based on exceptions to immunity for its failure to maintain the rope swing in 

good repair (§ 831.7, subd. (c)(1)(C)), and gross negligence in failing to remove or 

maintain the rope swing and leaving wood debris in the ravine (§ 831.7, subd. (c)(1)(E)). 

The County addressed these additional exceptions in its reply brief, arguing they did not 

apply because it (1) did not construct the rope swing and had no duty to maintain the 

swing; and (2) it could not be grossly negligent because it had no duty to remove the rope 

swing and the County did not cause Casteen's injuries.

The trial court denied the County's summary judgment motion. The court 

concluded that because the County did not construct the tree rope swing, the County had 

no duty to maintain the swing. It also concluded the exception for gross negligence did 

not apply because the County had no duty to police the park and remove rope swings and

leaving wood debris in the ravine did not constitute negligence as a matter of law. 
5

Nonetheless, it denied the motion finding triable issues of material fact existed whether 

the County deposited wood debris in the ravine and whether the partially hidden wood 

debris constituted a separate and distinct danger not inherent in the hazardous activity of 

rope swinging.

The County filed a writ petition claiming the trial court erred in denying its motion 

because the debris in the ravine did not present a substantial risk of danger to members of 

the public. We requested an informal response to the petition, indicating we were 

considering issuing a peremptory writ in the first instance. In his informal response, 

Casteen argued the County failed to meet its initial burden of negating the exception to its 

immunity defense for negligent failure to maintain the rope swing. Even assuming the 

burden of proof shifted, Casteen argued that triable issues of fact existed on the 

exceptions to immunity for failure to maintain, failure to warn and gross negligence. We 

issued an order to show cause why the relief presented should not be granted and stayed 

the action.

We later requested and received, supplemental briefing on application of section 

831.2 (immunity for natural condition of unimproved public property), to the facts 

presented in the parties' separate statements. Although we considered these submissions, 

we have decided to resolve the matter on section 831.7, the statutory immunity argued by 

the parties below. The decision to not address section 831.2 is not an opinion on the 

potential application of this statutory immunity.
6

DISCUSSION

I. General Legal Principles

A. Summary Judgment

Summary judgment is properly granted when there is no triable issue of material fact 

and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, 

subd. (c).) Where the defendant is the moving party, it must show that a cause of action has 

no merit by putting forth evidence that either one or more elements of the cause of action, 

even if separately pleaded, cannot be established or that a complete defense exists thereto. 

(Code Civ. Proc., § 437c, subds. (o) & (p)(2); Saelzler v. Advanced Group 400 (2001) 25 

Cal.4th 763, 768 (Saelzler).) If the defendant meets this burden, the burden shifts to the 

plaintiff to establish that a triable issue of material fact exists. (Code Civ. Proc., § 437c, 

subd. (p)(2); Saelzler, at p. 768.)

We review the trial court's decision to grant summary judgment de novo. (Saelzler, 

supra, 25 Cal.4th at p. 768.) We must view the evidence submitted in connection with a 

motion for summary judgment in a light most favorable to the party opposing the motion and 

resolve "any evidentiary doubts or ambiguities in plaintiff's favor." (Ibid.) We 

independently determine whether the record supports the trial court's conclusions that the 

asserted claims fail as a matter of law, and we are not bound by the trial court's stated 

reasoning or rationales. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 

951.)
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B. Public Entity Liability and Immunity

Public entity liability for an act or omission is governed exclusively by statute.

(§ 815, subd. (a).) "Except as provided by statute, a public entity is liable for injury caused 

by a dangerous condition of its property . . . ." (§ 835, italics added.) The introductory 

phrase to section 835 makes clear that another statute can preclude the imposition of liability 

on a public entity by providing an absolute immunity. (McCauley v. City of San Diego

(1987) 190 Cal.App.3d 981, 992.) A " 'dangerous condition' means a condition of property 

that creates a substantial . . . risk of injury when such property . . . is used with due care in a 

manner in which it is reasonably foreseeable that it will be used." (§ 830, subd. (a).) The 

plaintiff is required to establish only "that the condition . . . creates a substantial risk of harm 

when used with due care by the public generally . . . ." (Murrell v. State ex rel Dep't of Pub. 

Works (1975) 47 Cal.App.3d 264, 267.)

" 'Thus, even though it is foreseeable that persons may use public property without 

due care, a public entity may not be held liable for failing to take precautions to protect such 

persons.' [Citations.] Any property can be dangerous if used in a sufficiently abnormal 

manner; a public entity is required only to make its property safe for reasonably foreseeable 

careful use." (Mathews v. City of Cerritos (1992) 2 Cal.App.4th 1380, 1384.) For example, 

in Fredette v. City of Long Beach (1986) 187 Cal.App.3d 122, which involved a diving 

accident, the court said, "the absence of the gangplank and the shallowness of the water 

between the pier and the float were apparent to all users. The physical characteristics of the 

facility gave immediate notice to those persons exercising due care that diving from the pier 
8

was, in and of itself, a hazardous activity that should be avoided. We think it clear that no 

member of the public may ignore the notice which the condition itself provides." (Id. at

p. 132.)

Section 831.7 precludes the imposition of liability on a public entity for hazardous 

recreational activities. Subdivision (a) of section 831.7 provides that a public entity is not 

liable to any person who participates in a hazardous recreational activity "for any damage or 

injury to property or persons arising out of that hazardous recreational activity." The 

purpose of immunity for recreational activities on public land "is to encourage public entities 

to open their property for public recreational use, because 'the burden and expense of putting 

such property in a safe condition and the expense of defending claims for injuries would 

probably cause many public entities to close such areas to public use.' " (Armenio v. County 

of San Mateo (1994) 28 Cal.App.4th 413, 417.) Accordingly, the focus of the statute was to 

prevent "recreational users who might injure themselves during hazardous unsupervised 

activities and attempt to attribute their injuries to conditions of public property" by 

"limit[ing] liability based on a public entity's failure either to maintain public property or to 

warn of dangerous conditions on public property." (Avila v. Citrus Community College Dist.

(2006) 38 Cal.4th 148, 157 (Avila).)

A " 'hazardous recreational activity' " is defined by a nonexclusive list of activities 

that qualify, including "tree rope swinging." (§ 831.7, subd. (b)(1)-(3); Avila, supra, 38 

Cal.4th at p. 154.) Section 831.7 provides five exceptions to hazardous recreational activity 

immunity. (§ 831.7, subd. (c)(1)(A)-(E).) As relevant here, these exceptions include: failure 

to warn or guard against a dangerous condition or another hazardous recreational activity 
9

that was not assumed by the participant as an inherent part of the activity out of which the 

injury arose (id. at subd. (c)(1)(A)); negligent failure to properly construct or maintain in 

good repair recreational equipment utilized in the hazardous recreational activity (id. at subd. 

(c)(1)(C)); and gross negligence by a public entity proximately causing the injury (id. at 

subd. (c)(1)(E)). Notably, section 831.7 further provides that "[n]othing in this subdivision 

creates a duty of care or basis of liability for personal injury or damage to personal property."

(Id. at subd. (c)(2).)

Generally, whether a given set of facts and circumstances amounts to a dangerous 

condition presents a question of fact. (Biscotti v. Yuba City Unified School Dist. (2007) 158 

Cal.App.4th 554, 558-559 (Biscotti).) "Nevertheless, that question may be decided as a 

matter of law if no reasonable person could conclude the property's condition is dangerous as 

that term is statutorily defined. [Citations.] In such cases, summary judgment is proper. 

[Citations.] '[T]he plaintiff has the burden to establish that the condition is one which creates 

a hazard to persons who foreseeably would use the property with due care.' " (Id. at p. 559.)

II. Analysis

A. Burden of Proving Affirmative Defense

Casteen contends the writ petition should be denied based on the County's failure 

to meet its initial summary judgment burden on the affirmative defense of section 831.7 

because the County failed to address the exceptions to immunity listed in the statute. The

County disagrees, asserting the exceptions to immunity are not affirmative defenses.

Generally, where "an affirmative defense contains an exception, a defendant must 

also negate the exception as part of its initial burden on summary judgment if, but only if, 
10

the complaint alleges facts triggering potential applicability of the exception." (Varshock 

v. Department of Forestry & Fire Protection (2011) 194 Cal.App.4th 635, 651.) Here, 

Casteen's complaint sufficiently alleged facts triggering potential application of the 

section 831.7 exception to immunity for failing to guard or warn of a known dangerous 

condition not inherently part of the hazardous recreational activity (§ 831.7, subd. 

(c)(1)(A)), and failing to maintain in good repair the recreational equipment used in the 

activity (§ 831.7, subd. (c)(1)(C)). As Casteen correctly notes, the County did not 

specifically address in its summary judgment motion the exception for failing to maintain 

in good repair the recreational equipment used in the activity.

Nonetheless, as we shall discuss, the material facts of the accident and the 

County's conduct are not in dispute. Additionally, the parties fully addressed the failure 

to maintain exception below and the trial court ruled on its application. Similarly, the 

parties addressed, and the trial court ruled on, the gross negligence exception even though 

the complaint failed to allege facts bringing this exception into play. (Keyes v. Santa 

Clara Valley Water Dist. (1982) 128 Cal.App.3d 882, 886 [Plaintiff is obligated to "plead 

facts sufficient to show his cause of action lies outside the breadth of any applicable 

statutory immunity."]; Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1738

[the initial burden only requires a defendant seeking summary judgment to address issues 

raised in the plaintiff's complaint].) Because the material facts are not in dispute, we 

shall discuss application of the three exceptions addressed by the parties below.
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B. Application of Section 831.7

Section 831.7 expressly provides that, absent an applicable statutory exception, a 

public entity is immune from liability for injuries arising out of tree rope swinging.

(§ 831.7, subd. (a)(3).) Thus, the question presented is whether any of the three 

exceptions to immunity argued by the parties allows liability. We address each exception 

in turn.

1. Failure to Warn Exception

Casteen alleged the County negligently failed to remove the tree rope swing and 

the debris in the ravine. The trial court found triable issues of material fact existed 

whether the County deposited wood debris in the ravine and whether the partially hidden 

wood debris constituted a separate and distinct danger not inherent in the hazardous 

activity of tree rope swinging. Casteen contends the trial court correctly applied the 

failure to warn exception and its ruling should not be disturbed. We disagree.

Section 831.7, subdivision (c)(1)(A) does not limit liability which would otherwise 

exist for "[f]ailure of the public entity . . . to guard or warn of a known dangerous 

condition or of another hazardous recreational activity known to the public entity . . . that 

is not reasonably assumed by the participant as inherently a part of the hazardous 

recreational activity out of which the damage or injury arose." Thus, this exception 

destroys immunity only where the causal factor was "not reasonably assumed . . . as 

inherently a part of the hazardous recreational activity out of which the damage or injury 

arose." (§ 831.7, subd. (c)(1)(A); DeVito v. State of California (1988) 202 Cal.App.3d 

264, 271 (DeVito).)
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In DeVito, the appellate court affirmed a ruling sustaining a demurrer without 

leave to amend because the public entity was immune from liability under section 831.7 

for personal injuries that resulted when the plaintiff fell while swinging from a fire hose 

hung from a tree. (DeVito, supra, 202 Cal.App.3d at pp. 266-267.) The court stated that 

"the complaint alleged the public entity knew of the dangerous condition of the fire hose 

hanging from the tree next to the slope. But the danger that a person who swings on the 

hose might fall down the slope is assumed by the participant as an inherent part of the 

activity of 'tree rope swinging.' " (Id. at p. 272.) Thus, the public entity had no duty to 

guard or warn against the known dangerous condition of the fire hose swing. (Ibid.)

Similarly in Perez v. City of Los Angeles (1994) 27 Cal.App.4th 1380 (Perez), the 

appellate court affirmed a ruling sustaining a demurrer without leave to amend where the 

plaintiff fell while swinging from a rope hung in a tree on public property. (Id. at

pp. 1382-1383.) The Perez court noted that although the public entity knew young 

children were attracted by, and swung from ropes in trees over rough terrain and high 

gorges, the public entity had no obligation to take steps to prevent rope swinging by 

children on public property and was immune from liability for injuries resulting 

therefrom under section 831.7 because falling from a rope down the slope of a hill or a 

ravine is assumed by the participant as an inherent part of the activity of tree rope 

swinging. (Id. at pp. 1383-1385.)

The Perez court contrasted the situation where a person swinging from a rope 

jumps "into a body of water where, to the rope swinger's surprise," there were dangerous 

piranhas or crocodiles whose presence was known by the public entity. (Perez, supra, 27 
13

Cal.App.4th at p. 1384.) In this situation, the Perez court opined that "liability could be 

premised on the public entity's failure 'to guard or warn of a known dangerous condition'

(§ 831.7, subd. (c)(1)), i.e., the dangerous fish or reptiles, despite the legal 

characterization of tree rope swinging as a hazardous recreational activity." (Ibid.) 

Thus, for this exception to apply, the injury must be "suffered at least in part because 

the [public entity] failed to warn or guard against some additional dangerous condition . . .

for which no immunity is specified and which is not an inherent part . . . of the risk

presented" by the hazardous activity. (Perez, supra, 27 Cal.App.4th at p. 1383; internal 

quotes omitted.) A "[d]angerous condition" is defined as a condition of property creating a 

substantial risk of injury when such property is used with "due care." (§ 830, subd. (a).) 

"Cases holding public entities liable for failure to warn of dangerous conditions are based on 

the presence of an actual dangerous physical defect or an otherwise dangerous condition 

which was not apparent to persons using the property with due care. [Citations.] In all such 

cases, the inability of any user to see or appreciate the danger remained a constant feature of 

the property whether used by careless or careful persons." (Fredette, supra, 187 Cal.App.3d 

at pp. 122, 131-132.)

We conclude that the debris in the ravine, including partially hidden freshly cut wood 

left by County personnel, did not create a substantial risk of injury when the park is used 

with due care. Here, Casteen's act of swinging from a rope at least 10 feet off the ground is 

not using the park with due care. Rather such activity is, as a matter of law, hazardous.

(§ 831.7, subd. (b)(3).) Casteen presented no evidence showing the debris in the ravine 

posed a substantial risk of danger to any member of the general public using the park with 
14

due care. Accordingly, we reject his contention that the debris posed an additional 

dangerous condition that the County had a duty to guard against or warn of.

Moreover, the debris in the ravine is not akin to dangerous fish or reptiles lurking 

underwater, unseen by anyone looking at the body of water and posing a danger to all 

users — those individuals using due care, as well as individuals jumping or falling from a 

rope swing. Rather, anyone looking into the ravine could see it was cluttered with tree 

debris. This debris could hide rocks, larger fallen branches or tree cuttings left by the 

County's maintenance personnel. Should a tree rope swing break, the danger posed to the 

user of the swing by the ground itself or any type of debris on the ground or in the ravine, 

natural or manmade, was obvious. Landing on the ground or something located on the

ground that could cause injury is reasonably assumed as an inherent risk of tree rope 

swinging. Accordingly, the section 831.7, subdivision (c)(1)(A) exception to immunity

does not apply.

Casteen claimed he did not consider tree rope swinging to be a dangerous activity 

that created a substantial risk of injury to himself. His subjective belief regarding the risk 

of injury is irrelevant as "the statute refers to the reasonable assumption of the public 

generally (i.e., what a reasonable participant would assume to be inherent in the 

activity)." (Perez, supra, 27 Cal.App.4th at p. 1387.) Even assuming Casteen's

subjective belief was relevant, his assertion is belied by his custom and practice of testing 

the rope and branch before using a rope swing. By using a tree rope swing, Casteen 

reasonably assumed that an inherent part of the activity included the possibility that the 
15

rope or branch might break and he could be injured falling to the ground or into the 

debris filled ravine.

2. Failure to Maintain Exception

Section 831.7, subdivision (c)(1)(C) does not limit liability which would otherwise 

exist for injuries proximately caused by the negligent failure of a public entity "to 

properly construct or maintain in good repair any structure, recreational equipment or 

machinery, or substantial work of improvement utilized in the hazardous recreational 

activity out of which the damage or injury arose." By its own terms, this exception could 

only apply to the rope swing as the debris in the ravine was not "utilized" in the 

hazardous recreational activity.

Casteen did not allege that the County constructed the rope swing. Rather, he 

alleged the County had notice of the existence of the tree rope swing and negligently 

failed to maintain the rope swing in good repair or remove it. He argues that when the 

Legislature enacted the negligent failure to repair exception in section 831.7 the 

Legislature could not have intended the County to escape liability if someone leaves a 

tree rope swing, trampoline or bicycle jumping ramp in a County park, knowing the items 

are in disrepair.

Casteen reasons that section 831.7, subdivision (c)(1)(C) expressly preserves "liability 

that would otherwise exist" for the County's negligent failure to maintain the rope swing in 

good repair, contending that absent the section 831.7 immunity, the County would otherwise 

be liable for failing to maintain or remove the rope swing, even if the condition was created 

solely by an unknown third party, because the County had actual or constructive notice of its 
16

existence and the dangerous condition for a long enough period of time to "protect against"

the danger (§ 835, subd. (b)), and because the duty to "protect against" a known danger 

includes "repairing, remedying or correcting the dangerous condition" or "providing 

safeguards against the dangerous condition." (§ 830, subd. (b).)

We disagree with Casteen's assertion that the County would otherwise be liable for 

its failure to maintain or remove the rope swing absent the section 831.7 immunity. This 

argument presupposes that the mere existence of the rope swing, in whatever condition, 

constituted a dangerous condition. Again, a "dangerous condition" is a condition of 

property creating a substantial risk of injury when such property is used with "due care." 

(§ 830, subd. (a).) The mere existence of the rope swing did not create a substantial risk 

of injury when the park is used with "due care." (§ 830, subd. (a).) Rather, as a matter of 

law, individuals engaging in hazardous recreational activities utilizing recreational 

equipment abandoned by unknown third parties on public property are not exercising due 

care. Public entities do not have a duty to maintain or remove all items on public lands 

that could potentially pose hazards to individuals not exercising due care.

Moreover, had the County removed the tree rope swing, someone could have 

easily installed another one. Casteen is seeking to impose a duty on public entities to 

bear the cost of continually policing potentially large expanses of public lands for 

recreational equipment left by third parties and become experts in various pieces of 

abandoned recreational equipment to discern whether the abandoned equipment is in 

good repair. Imposing such a duty would dissuade public entities from opening their land 

for public enjoyment. In contrast, it costs users of public land, such as Casteen, nothing 
17

to simply avoid abandoned recreational equipment. As another court observed, "[t]here 

is a limit as to how far society should go by way of direct governmental regulation of 

commercial and private activity, or indirect regulation thereof through the tort system, in 

order to protect individuals from their own stupidity, carelessness, daring or selfdestructive impulses." (Edwards v. California Sports, Inc. (1988) 206 Cal.App.3d 1284, 

1288.)

3. Gross Negligence Exception

Section 831.7, subdivision (c)(1)(E) does not limit liability which would otherwise 

exist for "[a]n act of gross negligence by a public entity . . . that is the proximate cause of 

the injury." Gross negligence is generally defined as " ' "the want of even scant care or 

an extreme departure from the ordinary standard of conduct." ' " (Decker v. City of 

Imperial Beach (1989) 209 Cal.App.3d 349, 358.) Here, it is undisputed that the County 

did not install or construct the rope swing. As we have discussed, the debris in the ravine 

and mere existence of the rope swing did not constitute dangerous conditions as they 

posed a trivial risk of injury when the property is used with due care. Public entities do 

not have a duty to maintain or remove all items on public lands that could potentially 

pose hazards to individuals not exercising due care. Additionally, the risk of falling on 

debris should a tree rope swing break is an inherent risk of that activity. Thus, the 

County had no duty to guard against or warn of these inherent risks. The evidence does 

not show the County acted negligently; accordingly, the gross negligence exception to the 

hazardous recreational activity immunity provided by section 831.7, subdivision (a) does 

not apply.
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DISPOSITION

Let a writ of mandate issue directing respondent to vacate its order denying 

petitioner's motion for summary judgment and to enter a new order granting the motion. 

The stay previously issued by this court is dissolved. Petitioner is entitled to its costs in 

this proceeding.

McINTYRE, J.

WE CONCUR:

McDONALD, Acting P. J.

O'ROURKE, J.