Kandel v. City of Thousand Oaks

Filed 3/24/08 Kandel v. City of Thousand Oaks CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
LUCAS KANDEL, Minors, etc., et al.
Plaintiffs and Appellants,
v.
CITY OF THOUSAND OAKS et al.,
Defendants and Respondents.
2d Civil No. B194356
(Super. Ct. No. SC041735)
(Ventura County)
While hiking in lands owned and managed by Conejo Open Space
Conservation Agency (COSCA), appellants and three other minors came upon a storm
drain. They climbed into a catch basin and entered a drainage pipe, which angled sharply
upward. Appellants turned back and waited at the mouth of the pipe while the three other
minors continued upward. On their descent, they slipped and collided with appellants,
injuring them. They filed a tort action against the City and one of the minors, alleging a
dangerous condition of public property, and negligence. Both moved for summary
judgment, which the trial court granted. We conclude that appellants failed to establish
the existence of a dangerous condition of public property and affirm.
FACTS AND PROCEDURAL HISTORY
On February 16, 2004, appellants Lucas Kandel and Jordan Flores decided
to hike in the Arroyo Conejo Open Space. Appellants were accompanied by three other

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minors, Justin Flores, Jonathan Flores and respondent Dustin Urquhart. Justin Flores and
Jonathan Flores are not parties to the appeal.
Three of the boys had visited the Arroyo Conejo Open Space the day before
the accident and returned to explore a cave. They brought water, food and flashlights.
The boys started the hike at the Rancho Conejo Playground. They visited a waterfall,
then proceeded to a second waterfall where they explored a cave. They continued north
along the Conejo creek in an area that had no trail. The boys stopped when they reached
a storm drain and catch basin. By this time they had been hiking for two to three hours
and the temperature was approximately 80 to 90 degrees.
The catch basin had 2- to 4-foot high walls. The boys climbed over the
wall and felt cool air blowing out of a drainage pipe. They sat down inside the basin and
could see water coming through the pipe and moss in the bottom of the basin. Urquhart
suggested that the boys explore the pipe. Justin said it was not a good idea.
The boys crawled into the pipe on their hands and feet in a hunched-over
position. Urquhart was in the lead, followed by Jonathan Flores, Lucas Kandel, Jordan
Flores and Justin Flores. After advancing three feet into the pipe it was too dark to see.
As they crawled, the slope of the pipe changed abruptly and became very steep. Jordan
Flores became frightened and turned around. Lucas Kandel said he would stay with
Jordan. Urquhart climbed 400 feet into the pipe.
Appellants (Lucas and Jordan) left the pipe, but re-entered it to be in the
shade. They waited for 15 minutes, and then called up to the other boys, who had
reached a flat area. The boys called out that they were on their way down, and appellants
stopped about 5 to 10 feet from the exit, while still inside the pipe. The other boys
crabwalked down the pipe, to keep themselves above the water. Justin sat down in the
water, so he could slide down the pipe. The boys began sliding too fast and lost control.
They tumbled down and collided with appellants, injuring them.
The operative pleading is third amended complaint. Appellants, through
their guardians ad litem, filed a tort action against the City of Thousand Oaks, Conejo
Recreation and Parks District, and the Conejo Open Space Conservation Agency

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(collectively City), alleging that the City was liable for creating a dangerous condition on
public property. They also named Dustin Urquhart in the complaint and alleged a cause
of action against him for negligence.
Appellants contended that they were injured while sitting at the open end of
the storm drain. They claimed that the "open storm pipe and open catch basin/water flow
dissipater" constituted a dangerous condition and proximately caused appellants' injuries.
They alleged that the City could have prevented their injuries by installing a device to
"secure the openings" of the storm drain and catch basin.
The storm drain had been the property of COSCA since 1995. Appellants
claimed that COSCA knew or should have known that people were entering the pipe and
catch basin because there was trash and evidence of campfires nearby. The catch basin
was marked with graffiti and part of the basin had been repainted to cover it. Appellants
indicated that there were no warning signs near the storm drain, nor was there a fence,
grate or barrier to protect people from injury. They claimed that the danger presented
was that others could climb in the drain pipe without knowing of the steep incline, lose
traction and risk injury to themselves or others.
The City and Urquhart answered and moved for summary judgment. The
trial court granted both motions.
City's Motion for Summary Judgment
The City alleged in its motion for summary judgment that 1) there was no
dangerous condition of public property; 2) the actions of third parties (i.e., the boys
sliding down the pipe) cannot constitute a dangerous condition; 3) the condition of which
appellants complained was open and obvious; 4) appellants assumed the risk of injury;
and 5) the City is immune from liability under Government Code sections and 830 and
831.7.
Appellants filed opposition to the City's motion. They contended that the
City was liable for their injuries because it had actual or constructive notice but failed to
take measures to protect against the dangerous condition. Appellants claim they used the

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property with due care and did not behave recklessly by sitting inside the pipe waiting for
their friends.
Appellants also alleged that the doctrine of assumption of the risk does not
apply. They asserted that they were unaware of the condition of the pipe until their
companions entered it. They had no knowledge of the configuration of the pipe, so could
not appreciate the danger it presented "in conjunction with the other children's conduct."
Appellants claimed that "taking a walk in nature" is not an inherently risk activity, within
the meaning of the doctrine.
Trial Court's Ruling
When the trial court granted the City's motion for summary judgment, it
sated that ". . . it does not appear that the property could be used with due care, and so as
an alternate ground in addition to the primary assumption of risk analysis, . . . this does
not appear to be a dangerous condition as defined by Government Code Section 830, so
on both those grounds the government entities' motions are granted."
A formal order was issued granting summary judgment in favor of City.
The trial court indicated that "the application of the Doctrine of Primary Assumption of
the Risk and the undisputed [f]acts established that no 'dangerous condition' of public
property as defined by Government Code Section 830 et seq., existed or proximately
caused or contributed to [appellants'] injuries. The court granted summary judgment in
favor of Urquhart based on the doctrine of primary assumption of the risk. The rulings
on both motions were reduced to a single judgment, which was entered on August 11,
2006.
On appeal, appellants claim the trial court erred in granting the City's
motion for summary judgment, but raise no claim of error as to its grant of summary
judgment in favor of Urquhart. The City and Urquhart both filed reply briefs. Although
Urquhart's counsel appeared at oral argument, he did not participate.
DISCUSSION
Summary judgment is appropriate when no triable issue exists as to any
material fact and the moving party is entitled to judgment as a matter of law. A

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defendant seeking summary judgment has the burden of establishing through admissible
evidence a complete defense to the action or the absence of an element essential to
plaintiff's case. We independently review the motion on appeal to determine the effect of
the supporting declarations and evidence. (Code Civ. Proc., § 437c, subds. (c) & (f)(1);
Rosenblum v. Safeco Ins. Co. (2005) 126 Cal.App.4th 847, 856.) We affirm the summary
judgment if it is correct on any legal theory. (Western Mutual Ins. Co. v. Yamamoto
(1994) 29 Cal.App.4th 1474, 1481; Jordan v. Allstate Ins. Co. (2007) 148 Cal.App.4th
1062, 1071.)
Dangerous Condition of Public Property
A dangerous condition is "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." (Gov. Code, § 830, subd. (a).)
A public entity is liable for injury caused by a dangerous condition of its
property if the plaintiff establishes that (1) the property was in a dangerous condition at
the time of the injury; (2) the injury was proximately caused by the dangerous condition;
and (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury
which was incurred. (§ 835.) Where the facts are undisputed, the existence of a
dangerous condition is a question of law. (Bonanno v. Central Contra Costa Transit
Authority (2003) 30 Cal.4th 139, 148.)
Appellants argue on appeal that it was reasonably foreseeable that a hiker
would, on a hot day, sit in the storm drain to cool off. It was also foreseeable that a hiker
might enter the drain pipe, climb the steep incline "and potentially fall down it and injure
themselves or others." They contend that this is especially likely with children, who are
held to a lower standard of care than adults.
We disagree. The trial court correctly concluded that no dangerous
condition existed. Appellants climbed into a catch basin, crawled up a slippery storm
drain in the dark, crawled back down the pipe, and sat inside. This cannot be said to be a
use of the storm drain with due care. Nor was it reasonably foreseeable that the storm

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drain would have been used in this manner. The storm drain was accessible only by two
to three hours of hiking in a remote area without marked trails. It was not foreseeable
that the minors would obtain access to the storm drain, much less climb inside the pipe.
We reject appellants' argument that the storm drain constituted a dangerous
condition because there were no warning signs or a fence or grate to act as a barrier to
prevent the boys' access. Appellants were not injured by the storm drain or catch basin,
but by the collision when their friends slid out of the drain pipe. The City owed no duty
to protect appellants from the actions of their friends.
Primary and Secondary Assumption of the Risk
Determining whether the primary assumption of risk doctrine applies is a
legal question to be decided by the court. (Knight v. Jewett (1992) 3 Cal.4th 296, 313
(Knight).) The existence of a duty of care is a legal question that we may review de
novo. (Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 993.)
Persons have a duty to use due care to avoid injury to others and may be
held liable if their careless conduct injures another. (Civ. Code, § 1714.) To establish a
cause of action for negligence, a plaintiff must prove that the defendant owed him a duty
of care. (Lackner v. North (2006) 135 Cal.App.4th 1188, 1197.) An exception to this
general rule is the doctrine of primary assumption of the risk. (Ibid.)
Knight, supra, 3 Cal.4th 296, distinguished between the doctrines of
"primary" and "secondary" assumption of the risk. Primary assumption of the risk
applies when the defendant does not owe a duty of care to protect the plaintiff from the
risk of harm that caused the injury. Secondary assumption of the risk applies where the
defendant has breached a duty of care owed to the plaintiff, but the plaintiff chooses to
encounter a known risk created by defendant's breach. (Id. at pp. 314-315.) Primary
assumption of the risk is a complete bar to recovery, while secondary assumption of the
risk "is merged into the comparative fault scheme . . . ." (Id. at p. 315; Cheong v.
Antablin (1997) 16 Cal.4th 1063, 1068.)
In the sports setting, "conditions or conduct that otherwise might be viewed
as dangerous often are an integral part of the sport itself." (Knight, supra, 3 Cal.4th at p.

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315.) A defendant has a duty to use due care not to increase the risk above those inherent
in the sport. (Id. at p. 316.) A defendant's liability turns on the whether another's conduct
was an "inherent risk" of the sport and whether the defendant had a legal duty to protect
the plaintiff against a particular risk of harm. (Id. at pp. 316-317.) A coparticipant in a
sport cannot be held liable for careless conduct, but only is liable when he intentionally
injures the plaintiff or engages in conduct so reckless it was totally outside the range of
activities involved in the sport. (Id. at p. 321; Ford v. Gouin (1992) 3 Cal.4th 339, 342.)
Conduct that is merely careless is barred by the primary assumption of the risk doctrine.
(Ibid.)
To determine whether primary assumption of the risk rather than
comparative negligence principles apply, a court must examine the nature of the activity,
the relationship of the plaintiff and defendant to the activity and to each other. (Childs v.
County of Santa Barbara (2004) 115 Cal.App.4th 64, 70; see Knight, supra, 3 Cal.4th at
pp. 316-317.) For example, recreational dancing is not subject to primary assumption of
the risk. (Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322, 329.) A
defendant who operated a dance hall spread Ivory Snow Flakes on the dance floor,
causing a dancer to slip on the substance and fall. The trial court granted summary
judgment in favor of the defendant. The reviewing court reversed, holding that the
Knight rule was inapplicable because falling was not a risk inherent in the activity of
recreational dancing. (Ibid.) Moreover, the defendant had breached a duty of due care
by spreading the substance on the floor. Thus, the dancer's fault in dancing on the floor
did not operate as a complete bar to her recovery. (Id. at p. 330.)
We addressed a similar issue in Childs v. County of Santa Barbara, supra,
115 Cal.App.4th 64. There, a child was injured while riding a scooter on a county
sidewalk. She fell after riding over a section of the sidewalk that was three inches higher
than the adjoining slab of sidewalk concrete. The plaintiff sued, alleging a dangerous
condition of public property. The County did not defend on the basis of governmental
immunity, but contended that scooter riding was a sport or recreational activity, thus her

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claim was barred by primary assumption of the risk. The trial court granted the County's
motion for summary judgment.
We concluded that the record did not establish that the child was engaged
in a "sport or sport-related recreational activity" subject to the doctrine of primary
assumption of risk and noted that the risk of falling did not cause an activity to be
inherently dangerous. (Childs v. County of Santa Barbara, supra, 115 Cal.App.4th at pp.
70-71.) "Falling or a comparable mishap is possible in any physical activity but is not
necessarily an inherent danger of the activity." (Id. at p. 73.) We reversed the order
granting summary judgment because a triable issue existed as to whether the plaintiff was
riding her scooter in such a manner that primary assumption of the risk would bar
recovery. (Id. at pp. 74-75.)
Appellants assert that the primary assumption of the risk doctrine is
inapplicable because cooling off in the drain pipe was not a sport and did not involve any
challenge or potential risk of injury. They claim that, although they began their day by
hiking, the only activity they were engaged in at the time of the injury was "relaxing and
cooling down in the storm drain" while their companions continued to climb into the
pipe.
Appellant were not engaged in a sport or sports-related recreational activity
at the time of the injury. All five hiked into an open space and had stopped to explore
several areas, including the storm drain. All five entered the drain, although appellants
turned back. That three of the boys slipped on the pipe, fell and collided with appellants
does not transform their hiking and exploration into a recreational activity subject to
primary assumption of the risk.
The City had no direct relationship with the boys' activity--it simply owned
and maintained the property upon which they chose to hike and explore. The trial court
erred in concluding that appellants' recovery was barred by the primary assumption of the
risk. However, the error does not alter the outcome. As has been established, no
dangerous condition existed. (Gov. Code, § 835.) Thus, the City bears no liability for
appellants' injuries.

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Hazardous Recreational Activity
The City raises as a defense that it is immune from liability pursuant to
Government Code section 831.7 because appellants were engaged in a hazardous
recreational activity on public property. We need not address the contention because we
have concluded that appellants were not engaged in a recreational activity when they
were injured.
We affirm the judgment. Costs on appeal are awarded to respondents.
NOT TO BE PUBLISHED.
COFFEE, J.
We concur:
GILBERT, P.J.
YEGAN, J.

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William Liebmann, Judge
Superior Court County of Ventura
______________________________
Lowthorp, Richards, McMillan, Miller & Templeman, Alan R. Templeman,
Dean W. Hazard, Lascher & Lascher, Wendy C. Lascher, Aris E. Karakalos for Plaintiffs
and Appellants, Lucas Kandel and Jordan Flores.
Law Offices of Joseph L. Stark & Associates, Joseph L. Stark, John M.
Bergerson for Defendants and Respondents, City of Thousand Oaks, Conejo Recreation
and Park District, and Conejo Open Space Conservation Agency.
Law Offices of Cho & Brown, Gary M. Schumacher for Defendant and
Respondent, Dustin Urquhart.

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