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., 

et al.,

Plaintiffs and Appellants,

v.

AMERICAN GOLF CORPORATION 

et al.,

Defendants and Respondents.

 B267613

 (Los Angeles County

 Super. Ct. No. GC050056)

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.
2

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. 
3

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 
4

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.”
5

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 
6

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 
7

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. 
8

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 
9

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).) 
10

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 
11

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 
12

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 AmbergerWarren, 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 AmbergerWarren 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 
13

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 
14

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 
15

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. 
16

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 
17

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 
18

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 
19

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 
20

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.] 
21

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. 
22

“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 
23

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 
24

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.